Citation Nr: A21018501 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 190506-33083 DATE: November 18, 2021 REMANDED Entitlement to an increased evaluation for a ventral hernia associated with service-connected laparotomy for lysis of adhesions, currently rated as 20 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1969 to March 1971. This case comes to the Board from a decision issued by the Agency of Original Jurisdiction (AOJ) in April 2019, which granted service connection for residuals of a laparotomy for lysis of adhesions and assigned an initial zero percent (noncompensable) disability rating. The Veteran timely appealed the adequacy of this rating. Because the AOJ issued its decision after February 19, 2019, the Appeals Modernization Act (AMA) applies to this case. See 38 C.F.R. §§ 19.2, 20.4. In his VA Form 10182 ("Notice of Disagreement" or NOD), the Veteran selected the direct review option, which means the Board's review is limited to the evidence of record at the time of the April 2019 decision. See 38 C.F.R. § 20.301. In May 2020, the Board issued a decision in this case, which organized the request for an increased rating for residuals of a service-connected laparotomy for lysis of adhesions into two parts: (1) granting a disability rating of 20 percent, but no higher, for a ventral hernia; and (2) denying an increased compensable rating for surgical scars associated with the laparotomy. After further proceedings before the United States Court of Appeals for Veterans Claims (Court), the parties filed a Joint Motion for Partial Remand (JMR). According to the JMR, the Veteran did not challenge the denial of an increased rating for his surgical scar and the parties therefore asked the Court to dismiss the Veteran's appeal of the Board's second ruling. But the parties agreed that the Board failed to adequately explain its reasons for not granting an increased 40 percent rating for a ventral hernia under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7339. By granting the JMR, the Court vacated the May 2020 Board decision only with respect to the denial of a rating higher than 20 percent for the ventral hernia associated with service-connected laparotomy for lysis of adhesions. That issue has now returned to the Board. DC 7339 authorizes a zero percent (noncompensable) rating for a postoperative ventral hernia if the surgical wounds have healed, a belt is not indicated, and the hernia is associated with "no disability. . ." A 20 percent rating is authorized for a ventral hernia which is "Small, not well supported by belt under ordinary conditions, or healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt . . ." Id. The code authorizes a 40 percent rating for a ventral hernia which is "Large, not supported by belt under ordinary conditions . . ." and a 100 percent rating when a ventral hernia is "Massive, persistent, severe diastasis recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable . . ." Id. When the Board assigned a 20 percent rating, it relied on an examination report, dated March 2019. In the "remarks" section of her report, prepared using a standard VA "Intestinal Surgery (Bowel Resection, Colostomy, Ileostomy)" disability benefits questionnaire, the examining physician described a "Large, ventral abdominal wall hernia approximately 24 cm vertical by 22 cm horizontal on today's exam. The ventral hernia was caused by the laparotomy in January 2018 for lysis of adhesions for the small bowel obstruction. . . Veteran has chronic discomfort in the left lower abdomen and the midline lower abdomen which is due to the ventral hernia and lack of abdominal muscle support. . . He has an elastic corset for support of the abdomen and this relieves hernia symptoms some." In its May 2020 decision, the Board reasoned that, because the March 2019 examiner identified a postoperative hernia manifested by a weakening of the abdominal wall, the Veteran was entitled to a 20 percent rating under DC 7339. The Board indicated that he was not eligible for a higher rating because, "The evidence does not show that his hernia is not well supported by belt under ordinary conditions, nor has his hernia been determined to be severe or inoperative." The JMR criticized the Board's decision for failing to explain why the examiner's description of the Veteran's hernia as "large" did not make the Veteran eligible for a 40 percent rating under DC 7339 for a hernia that is "Large, not supported by belt under ordinary conditions . . ." The regulation does not specifically define a "small" or "large" ventral hernia in terms of specific measurements for the purposes of DC 7339. Based on the examiner's description of the hernia as "large" and its duty to resolve reasonable doubt in the Veteran's favor, see 38 C.F.R. § 4.3, the Board has considered the possibility of granting a 40 percent rating without further development. But a careful reading of the DC 7339 and the May 2020 decision indicates that further information is needed first. Although there seem to be no published decisions interpreting DC 7339, the Court, in a memorandum decision, has described the requirements of a 20 percent rating as follows: "The Board also addressed whether [the appellant] had the requisite symptomatology to establish entitlement to a 20% evaluation for postoperative ventral hernia under DC 7339 (R. at 8-9), which requires evidence (1) that [he] suffered from a small ventral hernia that is not well supported by a belt under ordinary conditions, or (2) that [he] suffered from a healed ventral hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt." Pope v. Nicholson, No. 02-1552, 2006 U.S. App. Vet. Claims LEXIS 418, *5-6 (April 25, 2006). This quotation indicates that the Court treated the size of the hernia as relevant only if the hernia is not well supported by a belt under ordinary conditions. Whether a hernia is large or small, a 20 percent rating is appropriate pursuant to part (2) of the quoted language if there is weakening of the abdominal wall and if a supporting belt is indicated. If that belt does not provide a sufficient degree of support, then, under part (1) of the quoted language, the Veteran is eligible for a 20 percent rating if the hernia is small, and a 40 percent rating if the hernia is large. As noted, the Board denied a rating higher than 20 percent because, "[t]he evidence does not show that his hernia is not well supported by belt under ordinary conditions, nor has his hernia been determined to be severe or inoperative." This raises a question about the adequacy of the March 2019 examination report, prepared using an intestinal surgery disability benefits questionnaire, which did not ask the examiner to indicate whether the hernia required a supporting belt and, if so, whether the Veteran's apparently large hernia was "well supported" by that belt under ordinary conditions. The Compensation and Pension Service publishes a separate questionnaire for "Hernias (Including Abdominal, Inguinal and Femoral Hernias)" that does prompt the examiner to provide the information specifically required by DC 7339 for assigning a rating to ventral hernias. One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of deciding them directly. Nevertheless, even under the AMA the Board has the duty to remand issues when necessary to correct a pre-decisional duty to assist error. See 38 C.F.R. § 20.802(a). When the intestinal surgery questionnaire notified the AOJ about the discovery of a large ventral hernia characterized by a lack of abdominal muscle support, the duty to assist then required the AOJ to arrange a new examination to determine the severity of the hernia or to obtain a supplemental report from the March 2019 examiner with enough information to apply DC 7339. Because the AOJ failed to take either action before it issued the relevant decision in April 2019, the inadequacy of the March 2019 examination report amounts to a pre-decisional duty to assist error. While the Board sincerely regrets the need for further delay, it must remand the increased rating claim to obtain a new examination report, which should be prepared using a standard hernias questionnaire. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with a qualified medical professional for the purpose of determining the current severity of the ventral hernia associated with his service-connected laparotomy for lysis of adhesions. The examiner should review the claims file and, after his or her records review and examination are complete, should prepare a report using the standard VA hernias disability benefits questionnaire. The report should indicate the size of the Veteran's service-connected ventral hernia, whether or not a supporting belt is indicated, and, if a belt is needed, the examiner should further indicate whether the hernia is "well supported" by the belt under ordinary conditions. In the examination interview, the examiner should ask the Veteran whether there have been any fluctuations or changes in the severity of his service-connected ventral hernia symptoms during the relevant appeal period (November 21, 2018 to the present). The examiner's report should include a summary of the Veteran's answer to this question. 2. The AOJ must ensure that the requested examination report complies with these instructions. If any report is insufficient, the AOJ should return it to the examiner for any necessary corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.