Citation Nr: 0007708 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-11 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased (compensable) rating for postoperative umbilical hernia repair. 2. Entitlement to an increased (compensable) rating for postoperative left inguinal hernia repair. 3. Entitlement to a 10 percent rating based on multiple noncompensable disabilities. 4. Entitlement to service connection for a panic disorder with major depression and a bipolar disorder. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. L. Wright, Associate Counsel INTRODUCTION The veteran served on active duty from November 1988 to November 1991. This matter originally comes before the Board of Veterans' Appeals (Board) from a July 1997 rating decision by the Department of Veterans Affairs (VA) Huntington Regional Office Satellite Rating Board, which denied service connection for postoperative residuals of umbilical and left inguinal hernias; and a panic disorder with major depression and a bi-polar disorder. An RO decision in March 1998 granted service connection and assigned zero percent ratings for umbilical and left inguinal hernias, with an effective date of January 19, 1997; the veteran appealed for compensable ratings; and the RO also denied a compensable rating for multiple noncompensable disorders under 38 C.F.R. § 3.324 (1999); and continued its denial of service connection for variously diagnosed psychiatric disorders. The Board notes that the veteran has appealed the initial ratings assigned for his service-connected umbilical and left inguinal hernias; thus, appellate review must consider the applicability of a rating in excess of that currently assigned from the date of the original grant of service connection in each of the claims in question. See Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate or "staged" ratings may be assigned for separate periods of time based on the facts found), as opposed to a claim for an "increased rating". While it is apparent that the RO has not developed this issue in light of Fenderson, it is otherwise neither alleged nor shown that consideration of the merits of the claim presented would result in any prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). FINDINGS OF FACT 1. The veteran's service-connected postoperative repair of an umbilical hernia is manifested by an asymptomatic scar with no residual functional impairment. 2. The veteran's service-connected postoperative repair of a left inguinal hernia is manifested by an asymptomatic scar with no residual functional impairment or true hernia protrusion. 3. The veteran's two service connected hernia disabilities are rated noncompensable, and they do not clearly interfere with normal employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased (compensable) disability evaluation for service-connected residuals of an umbilical hernia repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 7339 (1999). 2. The criteria for entitlement to an increased (compensable) disability evaluation for service-connected residuals of a right inguinal hernia repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 7338 (1999). 3. The criteria for a 10 percent evaluation based upon multiple noncompensable service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.324 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims The veteran asserts that he is entitled to compensable evaluations for his umbilical and left inguinal hernias. These disabilities are both currently assigned a zero percent rating. The service medical records show that the veteran underwent an umbilical herniorrhaphy in September 1990. There were reportedly no operative complications and the veteran tolerated the procedure well. He had a left inguinal hernia repaired at the same time. Laboratory reports showed that specimens taken at the surgery were benign and consistent with a cord lipoma. At separation, a military examiner noted the veteran's umbilical hernia repair was healed and there was no sequelae. The veteran's left inguinal hernia appeared to have no sequelae. Since service, the veteran has undergone a VA examination in April 1997 that evaluated his postoperative hernias. He reported that since his hernia surgery, he had difficulty in lifting heavy weight of about 50 pounds. He also reported a pulling sensation with pain at the left testicle that became more sensitive upon exercise. The examiner noted the veteran had only a scar of about 1-1/2 inches over the umbilicus and a scar the left inguinal area. There was no objective indication that either scar was symptomatic or productive of any functional impairment. He was diagnosed with status post umbilical repair and status post inguinal hernia repair. The veteran's umbilical hernia has been assigned a noncompensable evaluation pursuant to the criteria set out in 38 C.F.R. § 4.115, Diagnostic Code 7339. That code provides that a postoperative ventral hernia with healed postoperative wounds, no disability, belt not indicated warrants a noncompensable rating. A 10 percent evaluation is warranted where there is a small ventral postoperative hernia that is not supported by belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. The veteran's left inguinal hernia has been assigned a noncompensable evaluation pursuant to the criteria set out in 38 C.F.R. § 4.115, Diagnostic Code 7338. That code provides that a small inguinal hernia that is reducible or without true hernia protrusion warrants a noncompensable evaluation. A 10 percent evaluation is warranted where there is a postoperative recurrent inguinal hernia that is readily reducible The evidence here does not suggest that a compensable evaluation is warranted for either of the veteran's hernias. The veteran's umbilical hernia was described as showing scars and there was no disability described. A belt was not indicated. In the absence of a recurrent hernia, a symptomatic scar, or some functional impairment attributable to the umbilical hernia, a compensable rating is not warranted. Further, the veteran's umbilical hernia has not been shown to have postoperative wounds with weakening of the abdominal walls. Therefore, the veteran's disability does not warrant a 10 percent evaluation. Further, the veteran's left inguinal hernia is small and reducible and without true hernia protrusion. The hernia is not recurrent and there is no description of use of a truss or belt. There is no objective medical evidence of a symptomatic surgical scar or any functional impairment attributable to the postoperative inguinal hernia. Therefore, a compensable evaluation is not warranted. As the evidence of record indicates that the postoperative hernias have remained asymptomatic, the Board views the noncompensable ratings are applicable from the date of initial assignment, without the necessity of consideration of "staged ratings." See Fenderson, supra. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that his service-connected disorders have resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Multiple Noncompensable Disabilities Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. See 38 C.F.R. § 3.324 (1999). Evidence regarding the severity of the disorders is summarized above. These service-connected disabilities are apparently permanent, separate, and are rated as noncompensably disabling. Significantly, however, the evidence does not establish that they clearly interfere with normal employability. In fact, the veteran testified before the undersigned in September 1999 that he was receiving Social Security benefits but that these benefits stemmed from a psychological disorder, for which he is not service-connected. Accordingly, the Board concludes that the criteria for a 10 percent rating for multiple noncompensable service-connected disabilities are not met. ORDER The veteran's claims of entitlement to compensable evaluations for postoperative umbilical hernia repair and postoperative left inguinal hernia repair are denied. Entitlement to a 10 percent evaluation for multiple noncompensable service connected disabilities is denied. REMAND With regards to the veteran's claim of entitlement to service connection for a panic disorder with major depression and a bipolar disorder, the Board notes that further development is necessary before review can proceed. The veteran has indicated that he was seen on several occasions while on active duty for psychiatric complaints, including anxiety, to include being evaluated while aboard ship. The available service medical records show no psychiatric disorder, but there is no indication that the RO searched for alternative records, such as ship logs or morning reports. At his personal hearing before the undersigned in September 1999, the veteran testified that he had recently been awarded Social Security Administration (SSA) benefits for his psychological disorder. He testified further that, during the course of the examinations for SSA benefits, he had been told that his problems could be related to his period of active service, specifically his exposure to chemicals and fumes while aboard ship. The undersigned held this case in abeyance for up to 30 days in order to obtain these records but the records have not been added to the claims file. The United States Court of Appeals for Veterans Claims (Court) (formerly the United States Court of Veterans Appeals), has held that the VA has a statutory duty to assist the veteran in obtaining military records. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990). Furthermore, in Cuevas v. Principi, 3 Vet. App. 542- 548 (1992), the Court held that the duty to assist is heightened when the service medical records are presumed destroyed and includes an obligation to search alternative forms of medical records which support the veteran's case. These records have been asserted to have significant probative value in determining whether service connection for the disability at issue may be granted. As to the Social Security records, the veteran suggested that some of the medical evidence tends to support his claim that his psychiatric disorder began during or is causally linked to active service. The Court held in Lind v. Principi, 3 Vet. App. 493, 494 (1992), the VA should attempt to obtain records from other Federal agencies, including the SSA, when the VA has notice of the existence of such records. Thus, the RO must request complete copies of the SSA records utilized in awarding the decedent disability benefits. The veteran underwent a psychiatric examination in April 1997, which resulted in a diagnosis of panic disorder with comorbidity of major depression. While the examiner did not specifically link the veteran's psychiatric disorder to service, a history of inservice psychiatric symptomatology necessitating evaluation was noted, which is consistent with the veteran's statements noted above. It is the veteran's believe that that should be additional service medical records available that confirm his testimony regarding evaluation of psychiatric symptoms and additional medical evidence from the Social Security Administration that supports his claim that his current psychiatric disorders are etiologically related to the symptoms he had while on active duty. It is again pertinent to note that both sets of records are held by federal government agencies. Under these circumstances, it is the Board's judgment that this case must be REMANDED to the RO for the following development: 1. The RO should make another search for service medical records of the veteran using all available sources, and documenting all efforts undertaken. Of particular interest are records of any treatment while the veteran was aboard ship including the ship's logs, morning reports, and sick call records. 2. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. If and only if any service medical or personnel records are obtained that reflect that the veteran was evaluated for psychiatric symptoms while on active duty, and/or if any of the medical records from the Social Security Administration suggest the contended causal link as alleged, the RO should schedule the veteran for a VA psychiatric examination for the purpose of determining the etiology and approximate onset date of any current psychiatric disability that may be present. The examiner must opine whether it is at least as likely as not that any psychiatric disorder that is present began during service; if a psychotic disorder whether it was present within one year of service; or whether any current disability is causally linked to any incident of active service. All indicated tests should be accomplished. The claims file must be made available to the psychiatrist for his or her review. 4. Thereafter, the RO should readjudicate the appellant's claim based on the additional evidence received. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case, and afforded an opportunity to respond thereto before the case is returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional development and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals