Citation Nr: 21005165 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-19 723 DATE: January 29, 2021 ORDER For the period beginning August 11, 2017, a compensable rating for a hernia disability, to include umbilical and ventral hernia, to include a temporary 100 percent evaluation due to convalescence following umbilical hernia surgery, is denied. For the period beginning August 11, 2017, a 10 percent rating, but no higher, for adhesions, as due to a hernia disability, is granted. A total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the period beginning August 11, 2017, the Veteran’s hernia has been manifested by healed postoperative wounds without indication for a supportive belt. 2. The Veteran did not require one month of convalescence or experience severe post-operative residuals following hernia repair surgery in August 2017. 3. For the period beginning August 11, 2017, the Veteran’s adhesions have been manifested by pain aggravated by bodily movement with occasional episodes of nausea and constipation alternating with diarrhea. 4. The Veteran has not been found unable to secure and follow substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. For the period beginning August 11, 2017, the criteria for a compensable rating for a hernia disability, to include umbilical and ventral hernia, to include a temporary total rating for convalescence following umbilical hernia surgery have not been met. 38U.S.C. §§1155, 5107; 38C.F.R. §3.102, 3.321, 4.3, 4.30, 4.114, Diagnostic Code 7339. 2. For the period beginning August 11, 2017, the criteria for a 10 percent rating, but no higher, for adhesions as due to a hernia disability have been met. 38U.S.C. §§1155, 5107; 38C.F.R. §3.102, 3.321, 4.3, 4.114, Diagnostic Code 7301. 3. The criteria for the assignment of a TDIU, due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to June 1990. In June 2020, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. A compensable rating for a hernia disability, to include umbilical and ventral hernia, to include a temporary total rating for convalescence following umbilical hernia surgery, for the period beginning August 11, 2017 Compensable Rating for Hernia Disability The Veteran's umbilical and ventral hernias have been rated by under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7339, which pertains to a postoperative ventral hernia. See 38C.F.R. § 4.20. Under DC 7339, a 0 percent rating is assigned for healed postoperative wounds, with no disability and a belt not indicated. A 20 percent rating is assigned for a small postoperative ventral hernia that is not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is assigned for a large postoperative ventral hernia that is not well supported by a belt under ordinary conditions. A 100 percent rating is assigned for a massive persistent postoperative ventral hernia, with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. 38 C.F.R. § 4.114. In a February 2018 VA treatment record, the Veteran reported intermittent abdominal pain for the last several months. She described the pain as an ache and noted problems with bowel movements, noting either constipation or loose stool. The assessment was abdominal pain of an unknown etiology, it was noted that it could be scar tissue or another hernia. During a July 2019 VA examination, the examiner found that the Veteran had a ventral hernia and abdominal adhesions which were at least as likely as not related to the initial umbilical hernia. VA treatment records show complaints in August 2020 of intermittent abdominal pain for the last several months, a lump on the rights side of the abdomen, intermittent bright red blood in stool, and changes to bowel habits alternating between diarrhea and constipation. They also show complaints of abdominal pain becoming more often and more severe. The Board finds that a compensable disability rating under Diagnostic Code 7339 is not warranted. In this regard, during the period on appeal, the evidence does not demonstrate that the Veteran has a hernia, which has required a supportive belt, which is required by the higher 20 percent, 40 percent and 100 percent ratings. While the Veteran is shown to report some discomfort, for the appeal period considered, the Veteran’s symptoms most closely approximate a noncompensable rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for the Veteran’s hernia disability, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Temporary Total Rating Due to Convalescence A total disability rating of 100 percent will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required surgery necessitating at least one month of convalescence, or where surgery results in severe postoperative residuals, or where treatment results in immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. In order to attain a temporary total rating, the veteran must demonstrate that her service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). The evidence of record shows that the Veteran underwent surgery to remove adhesions related to hernia repair surgery on August 11, 2017. However, there is no evidence showing that the Veteran required one month of convalescence following her surgery, or that she experienced severe post-operative residuals following the surgery. As such, the criteria for entitlement to a temporary total disability rating for convalescence are not met, and the claim must be denied. 2. A compensable rating for adhesions as due to a hernia disability, for the period beginning August 11, 2017 Under DC 7301, a 10 percent rating is assigned for moderate adhesions of the peritoneum with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. 38 C.F.R. § 4.114. A 30 percent rating is assigned for moderately severe adhesions of the peritoneum with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. Id. A higher 50 percent disability rating is assigned for severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. As noted above, February 2018 and August 2020 VA treatment records show the Veteran’s complaints of abdominal pain for the last several months, and problems with bowel movements and changes in bowel habits, noting either constipation or loose stool or diarrhea. The February 2018 provider noted that the pain was associated with either scar tissue or another hernia. The July 2019 VA examiner then concluded that the Veteran did in fact have adhesions as a result of her May 2014 hernia repair surgery. As such, the Board finds that the symptoms the Veteran reported during her February 2018 and August 2020 VA treatment are related to her service-connected adhesions from her hernia repair surgery. These symptoms were likely present in August 2017, as she reported their onset several months prior to her February 2018 treatment, and they meet the criteria for a 10 percent rating under Diagnostic Code 7301. Although the July 2019 examination did not go into detail as to the symptoms associated with the Veteran’s adhesions, there is no evidence indicating that these symptoms had dissipated. In fact, the August 2020 VA treatment records show that the symptoms persist. A higher disability rating is not warranted under Diagnostic Code 7301, however, as the evidence does not demonstrate partial obstruction or definite obstruction as described in the higher 30 and 50 percent rating criteria. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that a 10 percent rating, but no higher, for the service-connected adhesions due to a hernia disability is warranted, effective August 11, 2017. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). 3. Entitlement to TDIU The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him/her from obtaining or maintaining all gainful employment for which his/her education and occupational experience would otherwise qualify him/her. 38 C.F.R. § 4.16 (2019). TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2019). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16 (b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2019). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2019). For a veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2019). The sole fact that a veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a veteran is unemployed is generally insufficient to demonstrate that he/she is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary in order to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) (2019) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Analysis The Veteran is currently service-connected for major depressive disorder (MDD), obstructive sleep apnea, bilateral tinnitus, an umbilical hernia disability, scars on the abdomen, and abdominal adhesions. She has a combined disability rating of 80 percent, effective from April 9, 2014 and 90 percent, effective from August 20, 2020. Therefore, she has met the schedular criteria for TDIU since April 9, 2014. 38 C.F.R. § 4.16. In her August 2020 VA 21-8940 Veterans Applications for Increased Compensation Based on Unemployability, the Veteran reported that she has been unemployable since March 2020, due to her service-connected MDD. She has also reported during VA examinations and other medical treatment that her service-connected hernia disability and associated scars and adhesions impact her ability to work. The Board concludes that the most probative evidence of record weighs against finding that the Veteran's service-connected disabilities preclude her from obtaining or engaging in any form of substantially gainful employment. In this regard, in a February 2018 evaluation, H. H-G., Ph.D., concluded that the Veteran’s depressive disorder was aggravated by her tinnitus, umbilical hernia and scars on the abdomen associated with the umbilical hernia, and opined that the depressive disorder hindered the Veteran from maintaining substantially gainful employment without accommodations. However, the Veteran reported herself that her MDD did not prevent her from working until March 2020. Furthermore, a response from the Veteran’s last employer, Wellstar Health System, indicates that the Veteran began working there in September 214 and she last worked in March 2020 and resigned in August 2020, due to a health condition. The specific condition was not noted. It was noted that she lost 8 and a half months of time from work due to disability in the past year, but there was no indication that any accommodations were made due to disability during her employment. See August 2020 Request for Employment Information in Connection with Claim for Disability Benefits. During a July 2019 hernia disability VA examination the Veteran reported that she may have difficulty performing work that requires getting up and down from the floor or any lifting, and that she had to call in sick or leave work early 2-3 times a month due to severe abdominal discomfort. However, she did not report and the examiner did not conclude that she was unable to perform any type of gainful employment due to her service-connected disabilities. The Veteran’s private treatment provider noted her occupational impairment during a June 2020 Behavioral Health Assessment, two months after the Veteran had resigned from her job, but the provider ultimately concluded that the Veteran was able to return to work full-time when her condition resolved or improved. Moreover, just four months later during a VA mental disorders examination, the Veteran reported that she could no longer take working with patients during a pandemic and therefore, she resigned from her position at Wellstar Cobb Hospital in April 2020. The examiner noted that the Veteran was not working, and that she had resigned from her job because she had to work face to face with patients in a hospital during the pandemic. The examiner concluded that there was no evidence from the current interview or the medical record that the Veteran was unable to engage in gainful employment, and although she may have some difficulties with concentration, attention, and reduced productivity at work, this does not preclude her from engaging in employment activities. Although the Veteran’s symptoms have been found to cause occupational impairment, and her service-connected MDD specifically has been found to cause deficiencies in most areas, including work, only the February 2018 private examiner has ever concluded that she is totally occupationally impaired due to her service-connected disabilities. As noted above, the Veteran continued to work until March 2020, a little more than 2 years after the February 2018 provider’s opinion was rendered, and the Veteran has only reported being unable to work since March 2020. There is no other evidence of record, VA or private, showing that the Veteran’s service-connected disabilities affected her ability to obtain or maintain gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU at any time during the appeal period. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.