Citation Nr: 21030109 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-01 168 DATE: May 17, 2021 ORDER Entitlement to an initial compensable rating for status post umbilical hernia repair to include on an extra-schedular basis is denied. FINDING OF FACT The Rating Schedule is adequate to compensate the Veteran for her status post umbilical hernia repair; her status-post umbilical hernia repair does not present an exceptional disability picture. CONCLUSION OF LAW The criteria for an initial compensable rating for the status-post umbilical hernia repair, to include on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.16, 4.114 Diagnostic Code (DC) 7339 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from September 2008 to September 2012. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Houston, Texas. In June 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2018 and June 2020, the Board remanded the issue of entitlement to an initial compensable rating for status post umbilical hernia repair for additional development and extraschedular consideration by the VA's Director of Compensation Service. Entitlement to an initial compensable rating for status post umbilical hernia repair to include on an extra-schedular basis The Veteran contends her status-post umbilical hernia repair warrants a compensable rating. Generally, pursuant to the VA rating schedule, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In addition, however, under 38 C.F.R. § 3.321(b)(1), the VA Under Secretary for Benefits or the Director, Compensation and Pension Service, may approve an extraschedular rating in the exceptional case where the schedular evaluations are found to be inadequate. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (Director) to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. As VA's rating schedule does not include a specific diagnostic code for umbilical hernia, the Veteran's disability is rated, by analogy, under 38 C.F.R. § 4.114, DC 7339. Pursuant to DC 7339, a noncompensable rating is assigned for postoperative ventral hernia when the postoperative wounds are healed, there is no disability, and a belt is not indicated. A 20 percent rating is assigned for postoperative ventral hernia that is small, not well supported by a belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt. Turning to the evidence, the Veteran was afforded a VA examination in September 2019. The examiner found the Veteran did not have any other pertinent physical findings, complications, or conditions related to the status post umbilical hernia repair. The examiner noted that the Veteran reported pain deep in her abdomen since her umbilical hernia repair but found there was no evidence of any hernia and the scars were well healed. The Board found the September 2019 VA examination was inadequate. The examiner failed to address the potential effects on carrying a pregnancy or fertility. Further, while the examiner acknowledged the Veteran reported pain in her abdomen since the time of the umbilical surgery, the examiner did not address the functional impact of the reported pain. Following the June 2020 Board remand, the Veteran was afforded an additional VA examination in July 2020. The examiner noted the Veteran's current symptoms included intermittent pain from mesh and a difficulty carrying heavy objects. The examiner noted there was no indication for a need for support. In August 2020, the July 2020 VA examiner provided a QTC addendum. The examiner stated after a review of the Veteran's medical evidence and relevant medical literature, that there is no evidence that indicates that the mesh repair of symptomatic ventral hernias should be prohibited in the reproductive woman who desires future pregnancy. The examiner noted that a laparoscopic repair of ventral in fertile women who intend to have further pregnancies is an acceptable therapeutic option that causes no significant problems during pregnancy or delivery. The examiner concluded that there was no potential complication to include any effects on carrying a pregnancy or fertility as a result of the Veteran's status-post umbilical hernia repair. The Board finds that entitlement to an initial, compensable schedular rating for the Veteran's umbilical hernia is not warranted. The evidence of record does not demonstrate a postoperative ventral hernia that is small, not well supported by a belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt. In this case, the Veteran has reported pain in her umbilical hernia; however physical examination of the umbilical hernia has shown no abnormalities. Moreover, the Veteran indicated that she does not require a supporting belt. The Board notes that the Veteran is in receipt of a separate 10 percent evaluation for peritoneal adhesions associated with the umbilical hernia repair. To the extent the Veteran has claimed a functional impairment from pain as related to her umbilical hernia, the Board finds that this has been appropriately compensated by the already established 10 percent rating for peritoneal adhesions. As the competent, probative evidence indicates that the Veteran's umbilical hernia disability has not met or more nearly approximated the criteria for a compensable, schedular rating under DC 7339 (see 38 C.F.R. § 4.7), a noncompensable, schedular rating remains appropriate. See 38 C.F.R. § 4.31. The above determination is based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no pertinent point has the Veteran's service-connected status-post umbilical hernia repair been shown to be so exceptional or unusual as to render the applicable schedular criteria inadequate, and to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). With regard to the Veteran's claim for an extraschedular rating for her status-post umbilical hernia repair, the Veteran testified at the June 2017 hearing that she has trouble lifting more than 20 pounds, which significantly impacts her career as a registered nurse. She further testified that she was told by her stepfather, who was an OB/GYN, that a pregnancy would have been very painful due to the mesh in her lower abdomen. The Veteran noted her stepfather had recently passed away at the time of the hearing and was no longer able to provide a statement. In December 2020, the VA's Director of Compensation Service determined the cumulative medical evidence does not support an evaluation greater than 0 percent for the Veteran's status post umbilical hernia repair. The examiner noted the evidence does not show frequent hospitalizations, no emergency room visits, or surgical procedures (other than original umbilical hernia repair) performed regarding the residuals of umbilical hernia repair. Having reviewed this case thoroughly, and with due application of the substantive standards for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board finds that no higher rating is warranted on an extraschedular basis. The Veteran has claimed infertility as a result of her umbilical hernia repair and mesh placement. Infertility is not considered by the rating schedule and therefore presents an exceptional disability. However, the evidence of record does not show that the Veteran has objectively suffered from infertility as a result of her umbilical hernia repair. The Board is sympathetic to the Veteran's pain and resulting fears regarding the possibility of getting pregnant; however, the objective evidence of record does not establish that the Veteran was unable to conceive and carry a child, nor that her mesh would have prevented her from having a successful pregnancy. See August 2020 QTC opinion. Therefore, while infertility would be an exceptional disability not considered by the rating schedule, it is not established under the facts of this case. See Long v. Wilkie, 33 Vet. App. 167 (2020). As the objective evidence of record has not demonstrated the Veteran suffered from medically established infertility the Veteran does not present with a disability that is incapable of evaluation under the rating schedule. It is with consideration of the December 2020 opinion rendered by the office of the Director, and with strong supporting information taken from the remaining competent evidence of record, that the Board determines ultimately that an extraschedular evaluation is not assignable in this case. Through the opinion given, the Veteran's status-post umbilical hernia repair was deemed not to warrant an extraschedular rating as no exceptional disability has been established. As no exceptional disability has been established, the Board does not need to address if the Veteran's disability manifests with symptoms that cause marked interference with employment, frequent periods of hospitalization, or other related factors. See Thun v. Peake, 22 Vet. App. 211 (2008); Long v. Wilkie, 33 Vet. App. 167 (2020). Accordingly, the claim for entitlement to an increased rating for status-post umbilical hernia repair on an extraschedular basis is denied. The preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page) The Board is grateful for the Veteran's honorable service, and this decision is in no way meant to detract from that service. Unfortunately, the evidence of record does not support a determination that an increased rating is warranted at this time. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura C. Owens 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.