Citation Nr: 25001925 Decision Date: 02/10/25 Archive Date: 02/10/25 DOCKET NO. 16-56 232 DATE: February 10, 2025 REMANDED Entitlement to an initial compensable rating prior to February 10, 2022, and in excess of 20 percent thereafter, for service-connected ventral hernia is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1985 to April 1988, and from August 1989 to January 1996. In October 2022, the Board denied the Veteran's claim. Thereafter, the Veteran appealed the October 2022 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2024 Memorandum Decision, the Court vacated the October 2022 decision and remanded the matter. In September 2024, the Board remanded the appeal for further development consistent with the March 2024 Memorandum Decision. In the September 2024 remand, the Board determined that a retrospective opinion was necessary to address the nature and severity of the Veteran's service-connected ventral hernia from October 2016 to February 2022. In providing such opinion, the examiner was instructed to use statements elicited from the Veteran to address the severity of his disability during that period. Although the Veteran was afforded a VA examination in November 2024, as will be explained, the Board finds that the examination report does not substantially comply with the September 2024 remand directives, such that another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With specific regard to the Board's request for a retrospective opinion concerning the nature and severity of the Veteran's service-connected ventral hernia from October 2016 to February 2022, the examiner indicated that his condition had stayed the same, and it appears that the opinion was based solely on the absence of treatment or surgery during that period. However, the examination report does not reflect that the examiner attempted to elicit statements from the Veteran concerning the severity of his disability during that period. Instead, the examiner merely copied the histories reported in the prior examination reports, including the factually inaccurate history of surgery to his hiatal hernia in 2006 (discussed in the March 2024 Memorandum Decision). Moreover, as noted by the Veteran's attorney, although the examiner indicated that the Veteran's condition had stayed the same since 2016, VA had previously recognized that his disability worsened from at least February 2022, when the VA examiner found that his service-connected ventral hernia was manifested by a healed postoperative wound with weakening of the abdominal wall, part of the criteria for a 20 percent disability rating under Diagnostic Code 7339. See 38 C.F.R. § 4.114. Thus, to ensure an adequate record upon which to decide the appeal, and to ensure substantial compliance with the prior Board remand, another remand is necessary. On remand, the AOJ should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any VA treatment records dated from December 3, 2024, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. Schedule the Veteran for an appropriate examination to determine the nature and severity of his service-connected ventral hernia during the course of the appeal. The entire record must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner must take a history from the Veteran as to the progression of his service-connected ventral hernia. The examiner is asked to address the following: a) Based on all pertinent evidence of record, the examiner should describe all symptoms associated with the Veteran's service-connected ventral hernia for the period from October 2016 to February 2022. In this regard, the examiner must ask the Veteran to provide a history as to the nature and severity of his service-connected ventral hernia during this period. b) Then, based on the evidence of record and the information elicited during the examination, the examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected ventral hernia was manifested by (1) a small postoperative hernia not well supported by a belt under ordinary conditions; or (2) a healed ventral hernia or post-operative wound with weakening of abdominal wall and indication for a supportive belt (the measurement required for the next higher rating) during the period from October 2016 to February 2022. If the examiner determines that either one of these criteria were met during the period from October 2016 to February 2022, the examiner must provide an estimate as to when this occurred, and must provide support for the conclusion reached, including reference to any facts used to make the estimation. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence has been considered, to specifically include the Veteran's description of his symptoms during the period from October 2016 to February 2022; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. Thereafter, readjudicate the appeal. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.