Citation Nr: 21000261 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-21 878 DATE: January 5, 2021 ORDER Prior to January 14, 2020, entitlement to a 20 percent rating for service-connected ventral hernia is granted. From January 14, 2020, entitlement to a rating in excess of 20 percent for service-connected ventral hernia is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s healed ventral hernia produced weakening of the abdominal wall, without indication for a supporting belt. CONCLUSIONS OF LAW 1. Prior to January 14, 2020, the criteria for entitlement to a 20 percent rating, but no higher, for service-connected ventral hernia have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 7339. 2. From January 14, 2020, the criteria for entitlement to a rating in excess of 20 percent for service-connected ventral hernia have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 7339. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 2004 to October 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in June 2019. In October 2019, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to an initial compensable evaluation prior to January 14, 2020, and in excess of 20 percent thereafter for service-connected ventral hernia The Veteran contends that her service-connected ventral hernia warrants an initial compensable rating due to continuing symptoms, limitations, and restrictions due to her hernia. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Under DC 7339, which pertains to post-operative ventral hernias, a 0 percent rating is assigned for postoperative wounds that are healed, with no disability, and a belt not indicated. A 20 percent rating is assigned for small ventral hernias that are not well-supported by a belt under ordinary conditions, or a healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is assigned for large ventral hernias that are not well-supported by a belt under ordinary conditions. A 100 percent rating is assigned for massive, persistent, and severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable. 38 C.F.R. § 4.114, DC 7339. Prior to January 14, 2020 The Veteran’s service-connected ventral hernia is rated as noncompensable prior to January 14, 2020. A May 2014 private treatment record shows the Veteran’s hernia pops out occasionally and can become painful. The Veteran was afforded a VA examination in July 2014. The examiner did not find a hernia upon examination and noted the Veteran’s type of hernia is often difficult to detect on routine physical examination. The Veteran’s history is classic for recurrent spigelian type ventral hernia. The examiner stated there is no indication for a supporting belt. The Veteran’s hernia symptoms would interfere with bending and lifting activities which require abdominal musculature. The Veteran underwent a diagnostic laparoscopy with refixation of previously placed mesh in August 2014. See August 2014 Private Treatment Record. The operative findings show the edges of the previously placed mesh were loose. Id. The Veteran complained of intermittent pain associated with the hernia site and an intermittent bulge that is painful. Id. The Veteran relates that she has undergone multiple surgeries and takes medication for her hernia. See July 2015 Notice of Disagreement. She relates that she has daily severe pain and discomfort. Id. Her hernia makes it difficult for walking, sitting, and sleeping in daily life. Id. The Veteran states she has had ongoing surgeries for her hernia. The hernia has impacted her quality of life in limiting daily activity. See May 2016 VA Form 9. She is unable to do physical exercises, walk any distance, and limited in the amount of weight she can lift. Id. She has constant pain and discomfort with the hernia. Id. A July 2016 private treatment record notes the Veteran complains of a bulge and pain, especially with bending and twisting. The bulge is one centimeter in size and has to be pushed back in. The Veteran’s primary care physician, Dr. H.H., stated that given the Veteran’s type of hernia and her presentation, a hernia belt is not indicated and would not help with symptoms. See March 2019 Buddy Statement. The Veteran’s friend reported that the Veteran experiences pain with her hernia and has felt the Veteran’s hernia while it was protruding. See June 2019 Buddy Statement. This occurred after the Veteran’s third surgery. Id. At the June 2019 Board hearing, the Veteran related that she underwent surgery in August 2014 which was unsuccessful. The Veteran continues to experience a burning sensation at the location of the hernia. The hernia protrudes and she can feel a lumpy knot sticking out. She also feels a sensation of the hernia before it slips out. She keeps her hand over her hernia to give it extra support. The Veteran stated that for the type of hernia she has, a belt is not indicated because the hernia does not pop out on demand or upon engagement of the abdominal muscles. The Veteran states that exercising, stretching movements, and anything engaging the core muscles are difficult. The Veteran is a student and has had to leave class when the hernia protruded and was painful. Driving is a problem because she drives a stick shift. The Board finds that a 20 percent rating, but no higher is warranted for the Veteran’s service-connected ventral hernia. The evidence of record shows the Veteran’s hernia is post-operative with weakening of the abdominal wall. After her last procedure in August 2014, she continued to suffer from pain and bulging of the hernia. Although the July 2014 VA examiner found no indication for a supporting belt, the Veteran stated that she holds her hand over her hernia to prevent it from protruding. While the Veteran is not competent to opine that her hernia produced a weakened abdominal wall, the Board finds her lay statements prior to January 14, 2020, regarding burning and pain, support the later January 2020 medical finding of a healed ventral hernia with weakening of the abdominal wall. The evidence does not show the Veteran has a large ventral hernia, not well supported by a belt under ordinary conditions to warrant a 40 percent rating. Evidence shows the Veteran’s bulge is one centimeter in size, more reflective of a small ventral hernia. Accordingly, a rating of 20 percent, but no higher, is warranted for the Veteran’s ventral hernia for the period prior to January 14, 2020. From January 14, 2020 The Veteran’s service-connected ventral hernia is rated as 20 percent from January 14, 2020. The Veteran was afforded a VA examination in January 2020. The Veteran related she has intermittent discomfort near her hernia that aches or burns. She notices this occurs a few times a week and is triggered by activity that involves her left side such as twisting to the left or leaning over the left side of her abdomen. Due to these symptoms, she avoids those types of activities, lifts items on the right side of her body, frequently shifts when sitting, does standing push-ups, and does not carry heavy objects for prolonged periods of time. She experiences bulging about twice a week. She also reports that the hernia area feels unstable as if it “wants to pop” multiple times a week and the sensation lasts for hours. The examiner found the Veteran has healed postoperative wounds with weakening of the abdominal wall. The Veteran has a one centimeter in diameter by 0.2 centimeters thick area below the skin/lateral edge. The examiner felt a gap in the Veteran’s tissue that was four centimeters long and 0.5 centimeters wide. A current hernia-type bulge was not felt on palpation at the examination. There is no indication for a supporting belt. Private treatment records include a March 2020 record that shows the Veteran was seen for her recurrent ventral hernia. She was currently experiencing burning sensations, aches, and bulging at the hernia site. She indicated that she was able to “walk numerous blocks.” The physical examination revealed “some questionable laxity of the abdominal wall in the LUQ, but there is no obvious hernia defect.” There were no restrictions regarding any weight lifting or other physical activity. The examiner maintained that the benefits of physical exercise outweighed the risks of any worsening of her bulging. She was counseled to reduce activity if she experienced groin/abdominal pain. The Board finds that a rating in excess of 20 percent rating is not warranted for the Veteran’s service-connected ventral hernia. The evidence of record shows the Veteran’s hernia is post-operative with weakening of the abdominal wall. She continues to suffer from pain and bulging of the hernia. Her abdomen feels unstable in the area near her hernia and as if it will “pop”. The area measures as one centimeter thick on the outside and four centimeters long in the tissue area. Therefore, the Board finds the evidence does not show the Veteran has a large ventral hernia, not well supported by a belt under ordinary conditions to warrant an increased rating. Accordingly, a rating in excess of 20 percent is not warranted for the Veteran’s ventral hernia for the period from January 14, 2020. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.