Citation Nr: 22014579 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-36 074A DATE: March 14, 2022 ORDER An initial compensable rating (greater than 0 percent) for a hernia surgery scar is denied. An initial rating in excess of 20 percent for non-scar residuals of hernia surgery is denied. FINDINGS OF FACT 1. The Veteran's hernia surgery scar has been superficial, not painful or unstable and, at most, covers a total area of 6 cm by 1 cm. 2. The Veteran's non-scar hernia residuals are characterized as small, post-operative, recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. They have not been characterized as large or as not well-supported by belt under ordinary conditions. CONCLUSIONS OF LAW 1. The criteria have not been met for an initial compensable rating (in excess of 0 percent) for a hernia surgery scar. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7805. 2. The criteria have not been met for an initial disability rating in excess of 20 percent for non-scar residuals of hernia surgery. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.114, DC 7339. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to November 2012. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2014, the Veteran disagreed with this rating decision. In January 2020, she testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in January 2020 and June 2021. At that time, the Board remanded the case for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). After the June 2021 Board remand, the RO granted the Veteran service connection for non-scar residuals of hernia surgery, evaluated as 20 percent disabling, effective November 3, 2012. As this decision does not constitute a full grant, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 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. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 1. An initial compensable rating (greater than 0 percent) for a hernia surgery scar is denied. Legal Criteria Under DC 7805, for scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, evaluate any disabling effects not considered in a rating provided under diagnostic codes 7800-7804 under an appropriate diagnostic code. Under the applicable criteria for evaluating scars, compensable (10 percent) ratings are assigned for scars of the head, face or neck or other disfigurement of the head, face or neck with one characteristic of disfigurement. See 38 C.F.R. § 4.118, DCs 7800, 7801, 7802, 7804. Compensable (10 percent) ratings are also assigned for scars, not affecting the head, face, or neck, that 1) are deep and cover an area of at least 6 square (sq.) inches (39 sq. cm.) but less than 12 sq. inches (77 sq. cm) (a deep scar is one associated with underlying soft tissue damage); 2) are superficial and cover an area of 144 sq. inches or greater (929 sq. cm) (a superficial scar is one not associated with underlying soft tissue damage); or 3) are unstable or painful (an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar). Id. Higher ratings may be assigned where the scar is manifested by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features or three characteristics of disfigurement (of the head, face or neck), deep and covers an area of at least 12 sq. inches but less than 72 sq. inches or unstable or painful (three or four scars). Id. Alternatively, disabling effects not considered under ratings for scars are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Factual Background In a May 2013 VA examination report for hernias, the examiner noted that the Veteran had a scar that measured one inch and was located at the navel area. The scar was not painful or unstable, and the total area was not greater than 39 square cm. In a May 2017 VA examination report for scars, the Veteran was diagnosed with a surgical scar. The examiner noted that the scar dated from December 2011. The scar was located on the Veteran's anterior trunk. The examiner described the scar as a "well healed" vertical scar through the umbilical area. The scar was not painful or unstable and was not due to burns. The scar measured 6cm long. The examiner noted that the Veteran's scar had no functional impact on her ability to work. In an October 2021 VA examination report for scars, the examiner noted that the Veteran had a vertical "well healed" linear surgical scar. The Veteran had no scars on her head, face, or neck. Her scar was located on her anterior trunk, by her umbilical area. The date of onset of the scar was December 2011 and it was caused by her hernia repair. The examiner noted that the scar was stable, not painful, and measured 6cm by 1cm. There was no underlying tissue damage. The scar caused no limitation of function or motion and had no impact on the Veteran's ability to work. The Board notes that, throughout the appeal period, the Veteran received medical treatment for her hernia surgery scar. These treatment reports did not measure the severity of her scar and did not evaluate the nature, extent, and severity during the appeal period. Analysis Based on the above evidence, the Board concludes that an initial compensable rating (in excess of 0 percent) for the Veteran's residuals of hernia surgery scar is not warranted. § 4.118, DCs 7800, 7801, 7802, 7804, 7805. At no time during the appeal period has the Veteran's hernia surgery scar been characterized as painful or unstable, or had a combined area of equal to or greater than 39 square cm. The Veteran's hernia surgery scar does not meet the criteria for a compensable (10 percent or higher) rating. Id. The Board has considered the other Diagnostic Codes pertaining to scars. However, the Veteran's hernia surgery scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Id. The Veteran's scar is superficial and not associated with underlying soft tissue damage and it does not cover an area or areas of 39 square cm or greater. Id. Because of this, Diagnostic Codes 7800 through 7802, are inapplicable. Id. Additionally, the evidence of record shows there are no other disabling effect(s), such as being unstable or painful, not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under Diagnostic Code 7805. Id. The Board finds that the May 2013, May 2017, and October 2021 VA examination reports, describing the Veteran's hernia surgery scar, are the most probative evidence of record because the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent (qualified) to observe her scar symptoms, she does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable VA diagnostic criteria. Additionally, she does not have the training or credentials to apply that medical information to the legal criteria and determine the proper disability evaluations concerning her hernia surgery scar. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the above analysis, the evidence demonstrates that the Veteran's hernia surgery scar is superficial and did not result in limitation of function of the affected area. Additionally, the scar is not painful or unstable, deep, disfiguring, and does not cover an area exceeding 39 square cm. The Veteran's hernia surgery scar symptoms are adequately contemplated by the assigned non-compensable rating. Because of this, an initial compensable disability rating is not warranted for the Veteran's hernia surgery scar. 2. An initial rating in excess of 20 percent for non-scar residuals of hernia surgery is denied. Legal Criteria Under DC 7339 for ventral, postoperative hernias, a 20 percent disability rating is warranted when residuals are: 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. 38 C.F.R. § 4.114, DC 7339. A 40 percent disability rating is warranted when residuals are: large, not well supported by belt under ordinary conditions. Id. The maximum 100 percent disability rating is warranted when residuals are: massive, 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. Id. Factual Background The Veteran contends that the non-scar residuals of hernia surgery are more severe than the initial 20 percent disability rating. Her non-scar hernia residuals are rated under DC 7339. 38 C.F.R. § 4.114, DC 7339. In a May 2013 VA examination report for hernias, the Veteran was diagnosed with an umbilical hernia. The Veteran stated that she developed a hernia and had to undergo umbilical hernia repair in December 2011, while in service. She reported that she still felt discomfort at the site of the surgery. The VA examiner confirmed that in December 2011, the Veteran had umbilical hernia surgery. The Veteran was noted to have a well-healed umbilical hernia repair. There was no requirement for a supporting belt. In a May 2017 VA examination report for hernias, the Veteran was diagnosed with an umbilical hernia. The Veteran stated that she had umbilical hernia repair in December 2011. It had healed with no complications. However, the Veteran was 40 weeks pregnant at the time and had a small umbilical hernia which was expected to retract following delivery of her baby. The VA examiner noted that the umbilical hernia would have no functional impact or effect on her ability to work. In an October 2021 VA examination report for hernias, the Veteran was diagnosed with residuals of hernia surgery. The Veteran again reported her December 2011 hernia repair surgery. At the time of the examination, the Veteran was pregnant with her second child that was due in November 2021. The VA examiner noted that she wore an abdominal binder to help with the weight of her child. When she was not pregnant, she wore a small abdominal wrap to help with support. The Veteran's hernia would protrude throughout time since repair and since her last examination in May 2017. The Veteran reported that she had symptoms of protrusion of her hernia that caused dull pain but was not constant. She noted that the pain was relieved by lying on her back or with compression. The examiner noted that the Veteran had a small recurrent hernia following surgical repair. The recurrent hernia appeared operable and remediable. The hernia was located in the ventral area. A supporting belt was required. The examiner reported that the Veteran's hernia could be well supported by truss or belt. The VA examiner reported that the Veteran's hernia affected her ability to work. The Veteran worked in a support role at an airport. She had missed up to week of work in the past 12 months because of her hernia. The Veteran's hernia impaired her ability to lift heavy objects, but she reported that she could still do her job, just at a modified level. Throughout the appeal period, the Veteran received medical treatment for her residuals of hernia surgery. These treatment reports did not evaluate the nature, extent, and severity of her hernia residuals during the appeal period. While not discussed specifically, the Board has reviewed them and taken them into consideration. Analysis Based on the evidence described above and reviewed in the Veteran's claims file, the Board determines that the assigned 20 percent rating for the Veteran's non-scar residuals of hernia surgery contemplates her symptoms. 38 C.F.R. § 4.114, DC 7339. In the October 2021 VA examination report, the examiner characterized the Veteran's hernia as being well supported by truss or belt. At no point during the appeal period did the Veteran's hernia more nearly approximate large, not well supported by belt under ordinary conditions. Id. The Board finds that the May 2013, May 2017, and October 2021 VA examination reports, describing the Veteran's residuals of hernia surgery symptoms, are the most probative evidence of record because the examiners reviewed the claims file and provided detailed reports about the severity of the Veteran's non-scar hernia surgery residuals. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent (qualified) to observe her non-scar hernia symptoms, she does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable VA diagnostic criteria. Additionally, she does not have the training or credentials to determine the proper disability evaluation concerning her residuals of hernia surgery. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evidence is against a finding that the Veteran's residuals of hernia surgery warrant a rating in excess of 20 and, therefore, the claim must be denied. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, the Veteran has not specifically argued, and the record does not otherwise reflect, that her service-connected disabilities render her unable to secure or follow a substantially gainful occupation. In the October 2021 VA examination report, the Veteran stated that she was still working. Accordingly, the Board concludes that a claim for a total disability rating has not been raised. The Veteran certainly may raise this claim in the future, should she choose to do so. The Board is sympathetic to the Veteran's reports and understands that her disabilities have significant effects on her daily life. However, her symptoms more nearly approximate the assigned ratings in this decision. The Board also notes that this decision does not leave the Veteran without recourse. If her disabilities should worsen in the future, she is free to file claims for increased disability ratings at that time. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.