Citation Nr: 21009267 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-16 040 DATE: February 22, 2021 ORDER Entitlement to a compensable rating for ventral hernia residuals (previously hiatal hernia with unresolved hernia repair adhesions and scars) is denied. REMANDED Entitlement to service connection for status post, bilateral cataracts removal is remanded. FINDINGS OF FACT Throughout the period on appeal, the Veteran’s ventral hernia residuals has not been manifested with a small hernia, 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. CONCLUSIONS OF LAW The criteria for a compensable rating for service-connected ventral hernia residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Code 7339. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from November 1980 to May 1982 in the United States Navy during Peacetime. Later, he served honorably on active duty from November 2006 to October 2008 in the United States Air Force Reserves during the Gulf War, to include active service during various periods of ACDUTRA. The Board thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from a May 2009 rating decision (RD) by the Department of Veteran Affairs (VA) Regional Office (RO). In July 2018, this case was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the remand directives required the AOJ to: (1) obtain an examination to determine the current severity of the Veteran’s service-connected ventral hernia disability, (2) obtain an addendum opinion on the Veteran’s cataracts and (3) readjudicate claim. See BVA Decision July 2018. Per the Board’s remand directives, the AOJ scheduled and the Veteran attended a VA examination for hernias on March 8, 2019. Thus, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 289 (1998). With regard to the claim for cataracts, the AOJ obtained an addendum opinion; however, the Board finds that this opinion is inadequate, thus, this claim is addressed in the Remand portion of this decision. The Board notes that the Veteran’s claim of entitlement to service connection for allergic rhinitis was granted in a May 2020 rating decision, and his claims of entitlement to service connection for squamous cell neoplasm of the ear and left cheek, erectile dysfunction, dermatitis, urticaria, acne, and adhesions due to nosocomial infection were granted in a September 2020 rating decision. Accordingly, full benefits have been granted and the Board does not have jurisdiction over these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Rating – Legal Criteria Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, stage ratings are to be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports and analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain conclusions with a reasoned medical explanation based on supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if the history supports a higher rating during the rating period on appeal. 1. Entitlement to a compensable rating for ventral hernia residuals The Veteran seeks a compensable rating for his ventral hernia residuals. Specifically, he contends that although he has had his ventral hernia repaired, the adhesions and pain still continues and that the reason he has not complained about it much since 2007 is because the pain medications he takes for another illness masks the adhesion pain. See Correspondence received May 2014; VA Form 21-526 received October 2008. The beginning of the rating period on appeal in this matter is the date the Veteran filed for an increased evaluation of his ventral hernia disability on October 20, 2008. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Also see VA Form 21-526 received October 2008. The Board has reviewed the evidence to see if it is factually ascertainable that an increase occurred within a year of the claim for increase, but finds that it is not factually ascertainable that an increase in disability occurred in that period. The Veteran’s ventral hernia disability is currently rated noncompensable. As of a May 2020 rating decision, the disability has been characterized as a ventral hernia under Diagnostic Code 7339 based on a March 2019 VA examination which diagnosed ventral hernia. Prior to that, the disability was rated under Diagnostic Code 7346 as hiatal hernia with unresolved hernia repair adhesions and scars. 38 C.F.R. § 4.114. With regard to coexisting abdominal conditions, VA regulation recognizes that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability ratings without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Pursuant to 38 C.F.R. § 4.114, Schedule of Ratings – Digestive System, ventral hernia, postoperative is evaluated under Diagnostic Code 7339. Diagnostic Code 7339 provides that a 0 percent rating is warranted for wounds, postoperative, healed, no disability, belt not indicated. A 10 percent rating is warranted for small hernia, 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. A higher 40 percent rating is warranted for a large hernia, not well supported by belt under ordinary conditions. A 100 percent rating is warranted for a massive hernia, persistent, 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, Diagnostic Code 7339. Diagnostic Code 7346 provides for a 60 percent rating for hiatal hernia symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is provided for hiatal hernia symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is provided for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. Based on the evidence of record, the Board concludes that a compensable rating is not warranted for the Veteran’s service-connected ventral hernia disability for any part of the appeal period. Specifically, a compensable rating is not warranted as the preponderance of the evidence is against finding that the Veteran has a small hernia, 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 or large hernia or massive, persistent hernia to warrant a disability rating 20 percent or higher. 38 C.F.R. § 4.114, Diagnostic Code 7339. Likewise, the residuals were not manifested by two or more of the following symptoms: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. 38 C.F.R. § 4.114, Diagnostic Code 7346. Military facility treatment records show that the Veteran had a hernia repair in 2008 and that in November 2009, the Veteran complained of abdominal pain, over one year post hernia and reported that he has pain whenever he uses his abdominal muscles, such as sitting up. Also, in an April 2011 clinic visit, the provider noted that there was no evidence of recurrent hernia on physical exam and the bulge in his upper abdomen is most consistent with diastasis. Further, the records show that in August 2013, during a physical examination of the abdomen, the provider noted that no hernia was discovered. See Medical Treatment Record received October 2014; Medical Treatment Record received August 2014. Although the Veteran’s VA treatment records indicate a past medical history of ventral hernia repair, the records otherwise show no significant treatment or problems associated with his ventral hernia residuals. For example, in June 2014, a physical examination of the abdomen revealed no hernias. Also, in December 2016, the provider’s impression of the Veteran’s CT results revealed “no evidence to suggest hernia recurrence.” See Capri received May 2020; Capri received October 2014. Based on the July 2018 Board remand, the Veteran underwent a March 2019 Disability Benefits Questionnaire (DBQ) for hernias, which noted a 1994 diagnosis of ventral hernia. In the examination report, the Veteran reported that he was unable to do abdominal exercises from 1994 to 2007 when the ventral hernia was repaired; and the condition has stayed the same, occasionally more pain, if sit-ups are attempted the pain is excruciating and “it look like the end of a football popping out.” The examination report findings revealed that a ventral hernia repair surgery had been performed. The examiner marked that “no previous surgery, but hernia appears operable and remediable.” Also, the examiner marked “healed postoperative ventral hernia repair” and marked “No” for indication of support (a belt). There were no other pertinent physical findings. The examiner marked “Yes” for scars related to the Veteran’s hernia but marked “No” for the presence of painful or unstable scars or that he had a scar with a total area equal to or greater than 39 square centimeters. For functional impact of the Veteran’s ventral hernia on his ability to work, the examiner marked “No.” See C&P Exam received April 2019. While the Veteran is competent to describe the symptoms of his ventral hernia disability such abdomen pain to include when exercising, as a lay person without specialized medical training, his opinions as to the nature and/or cause or origin of his ventral hernia disability are not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Based on the evidence of record, the Board concludes that a compensable rating is not warranted for the Veteran’s service-connected ventral hernia disability for any part of the appeal period. Specifically, VA and military facility treatment records affirmatively found no ventral hernia was present post-surgery in April 2011, August 2013, June 2014, and December 2016. The preponderance of the evidence is against a finding that symptoms that would warranting a higher disability rating were shown at any time during the appeal. Additionally, the March 2019 DBQ showed that the Veteran had a healed, postoperative ventral hernia repair that did not require belt support and the examiner noted that his ventral hernia disability did not impact his ability to work. So, it appears that the Veteran’s surgical wounds have healed, and the ventral hernia repair is still intact, as indicated by VA and military facility records, and the March 2019 DBQ clinical findings. Thus, the preponderance of the evidence is against a finding that the Veteran has had at any time during the appeal a symptom combination that more nearly approximates the presence of a small hernia, 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 so as to warrant a higher rating under Diagnostic Code 7339. Likewise, the residuals were not manifested by two or more of the following symptoms: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. 38 C.F.R. § 4.114, Diagnostic Code 7346. While the Veteran reported pain doing sit-ups, this pain is no substernal or arm or shoulder pain. Further, even if this pain could be considered one of the symptoms noted under Diagnostic Code 7346, there is no evidence of any other symptoms, let alone any of the symptoms listed in Diagnostic Code 7346. There is no indication of epigastric distress, dysphagia, pyrosis or regurgitation. Accordingly, a compensable rating is not warranted under Diagnostic Code 7346. The Board finds that consideration for other diagnostic criteria for the digestive system is not warranted since the diagnosis of ventral hernia in 2019, as Diagnostic Code 7339 is specific for the diagnosis of ventral hernia. 38 C.F.R. § 4.114. The Board acknowledges that a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence (equipoise) on the merits. But, because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable in this case. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, 4.3, 4.7. In sum, entitlement to a compensable rating for the Veteran’s service-connected hernia residuals is denied. The Veteran and his representative have not raised any other issues in connection with his ventral hernia disability, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Board finds that additional development is necessary before a decision may be rendered on the issue on appeal. The Veteran had cataract surgery in September 2006. However, although development as to the Veteran’s periods of service was accomplished pursuant to the July 2018 Board remand, and shows he had active service from April 2006 and September 2006, the specific nature of such service (e.g., ACDUTRA, INACDUTRA, active service, etc.) remains unclear. On remand, additional development to identify the nature of the Veteran’s service from April 2006 to September 2006 should be completed. See STR received October 2013. The Veteran has a diagnosis of bilateral pseudophakia with opacified posterior capsules. In the April 2019 VA medical opinion, the clinician explained this diagnosis was a normal result of cataract surgery and is essentially, “fake lenses.” However, it is unclear whether the Veteran’s bilateral pseudophakia with opacified posterior capsules is a disability that causes functional impairment. On remand, addressing this question should be obtained. See C&P Exam received April 2019; C&P Exam received February 2009. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for his status-post, bilateral cataracts removal. 2. Please identify the exact character of the Veteran’s period of service from April 2006 to September 2006, i.e. was it ACDUTRA, INACDUTRA, active service, etc. 3. Please refer the Veteran’s claims file (including this remand) to an appropriate VA clinician for review of the file and preparation of an addendum medical opinion regarding the Veteran’s residuals of his cataract surgery. The clinician is asked to respond to the following: The clinician should identify any residuals of the Veteran’s cataract surgery, to include pseudophakia with opacified posterior capsules. For each identified residual of the cataract surgery, the examiner should identify whether there is any functional impairment due to the residual since October 20, 2008. The opinion provided must include a complete rationale for the opinion and conclusion reached, citing the objective medical findings leading to the conclusion. If an opinion cannot be provided without resort to speculation, the opinion provider should provide an explanation as to why this is so and not what, if any, additional evidence would permit such an opinion to be made. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. D. Hayes, 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.