Citation Nr: 21076056 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-10 924 DATE: December 22, 2021 ORDER Restoration of the Veteran's disability rating of 10 percent for umbilical hernia from December 1, 2016 is granted. Entitlement to a 10 percent disability rating based on multiple non-compensable disabilities is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for umbilical hernia is remanded. FINDINGS OF FACT 1. The evidence regarding the Veteran's service-connected umbilical hernia disability does not establish an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 2. The Veteran is in receipt of compensable evaluations for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a restoration of the Veteran's 10 percent for umbilical hernia from December 1, 2016 are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105(e), 3.343(a), 4.1, 4.2, 4.7, 4.10, Diagnostic Code (DC) 7338. 2. The criteria for the assignment of a 10 percent evaluation based on multiple noncompensable disabilities are not met. 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to September 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran provided testimony at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. 1. Restoration of the Veteran's disability rating of 10 percent for umbilical hernia from December 1, 2016 is granted. The Veteran's disability rating of 10 percent disability is restored effective December 1, 2016. Under 38 C.F.R. § 3.105(e), where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. A Veteran's disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. See 38 U.S.C. § 1155; 38 C.F.R. § 3.951. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). In regard to ratings in effect for fewer than five years, reduction is usually warranted if the evidence shows improvement of the condition. See 38 C.F.R. § 3.951. Additional protections apply in cases involving ratings that have continued for long periods of time at the same level (five years or more). See 38 C.F.R. § 3.344(a), (b); Lehman v. Derwinski, 1 Vet. App. 339 (1991). In such cases, rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations. Not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. § 3.344(a); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. See 38 C.F.R. § 3.951(b). The rating will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. See id. Under DC 7338, a zero percent disability rating is assigned for a small hernia, reducible, or without true protrusion; or for a hernia that is not operated but remedial. A 10 percent disability rating is assigned for a postoperative recurrent, readily reducible hernia, and well supported by truss or belt. A 30 percent disability rating is assigned for small, postoperative recurrent, or unoperated irremediable hernia, not well supported by truss, or not readily reducible. A 60 percent disability rating is assigned for large, postoperative, recurrent hernia, not well supported under ordinary conditions and not readily reducible, when considered inoperable. 38 C.F.R. § 4.114, DC 7338. Upon review of the evidence of record at the time of the reduction, the Board finds the evidence does not establish that the Veteran's hernia actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. The Veteran's hernia disability was evaluated at 10 percent from February 14, 2008 to December 1, 2016. Therefore, the Board determine if an improvement in a disability has actually occurred, and that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Prior to the reduction, the Veteran was examined in August 2014 and the examiner noted prior surgeries in 1994 and 1996 for umbilical hernia. The Veteran was noted to have a prominent umbilical hernia that was recurrent and large. See August 2014 Examination. The RO reduced the Veteran's evaluation based on an April 2016 VA examination that showed a small, two-centimeter, reducible umbilical hernia. The examiner noted there was no prior surgery. The examiner also noted that although the hernia was easily reducible, it returned promptly with assuming an upright or standing position or straining and that it was mildly tender to palpation. See April 2016 Examination. The RO also obtained an August 2016 examination that found a small, reducible umbilical hernia that could be well-supported by a belt or truss. See August 2016 Examination. Both the April and August 2016 examinations failed to record the Veteran's surgical history. In response, the Veteran submitted a Disability Benefits Questionnaire from a nurse practitioner that indicated the Veteran hernia was still painful and that he would require a surgical consultation for his hernia. See September 2019 Examination. The Veteran and his representative contend the evidence shows the Veteran's disability continues to warrant a 10 percent evaluation and the Board agrees. As the Board finds that the evidence of record at the time of the rating reduction did not demonstrate medical improvement under the ordinary conditions of life or work, the Veteran's disability rating of 10 percent disability is restored effective December 1, 2016. 2. Entitlement to a 10 percent evaluation based on multiple non-compensable disabilities The issue of entitlement to a combined rating of 10 percent for multiple, noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 for the entire period on appeal was certified to the Board. Under 38 C.F.R. § 3.324, whenever a veteran has two or more separate permanent service-connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. The provisions of 38 C.F.R. § 3.324 are predicated on the existence only of noncompensable service-connected disabilities. Once a compensable rating for any service-connected disability has been awarded, the applicability of the provisions under 38 C.F.R. § 3.324 is rendered moot. As a result of the restoration of the 10 percent evaluation for umbilical hernia in this decision, the Veteran is in receipt of compensable evaluations for the entire period on appeal, thus, the appeal on the issue of entitlement to a combined rating of 10 percent for multiple, noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 is denied. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for umbilical hernia is remanded. The Veteran contends his hernia disability has worsened since he was last examined in August 2016. The testified before the undersigned that he experiences an inability to wear a belt due to the protrusion of his hernia, that it has increased in size, and that he has increased pain. See May 2021 Hearing Transcript. For adjudication purposes, the September 2019 examination report does not contain the necessary criteria. Given the Veteran's competent testimony of a worsening of his hernia since he was last examined by VA, a new examination is warranted to determine the current severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400, 408 (1997). The matter is REMANDED for the following action: 1. Obtain any outstanding VA Medical Records. 2. The RO must schedule the Veteran for a new VA examination for his service-connected umbilical hernia to determine the current severity of his service-connected disability. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.