Citation Nr: 0003982 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 96-43 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to an evaluation in excess of 20 percent for service-connected ventral incisional hernia. 3. Entitlement to nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from July 1972 to July 1975 and from June 1977 to July 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 1996 rating decision from the Los Angeles, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for a neck disorder as not well grounded, denied entitlement to nonservice-connected disability pension benefits, and continued a 20 percent evaluation for service-connected ventral incisional hernia. In a statement, received in July 1996, the veteran stated that his shoulder problems, back pain, headaches, and ringing in the ears (tinnitus) were a result of the April 1980 in- service car accident. In as much as such are considered claims for service connection for these conditions, the Board refers the issues of service connection for shoulder problems, back pain, headaches, and tinnitus to the RO for further development and adjudication as necessary. The veteran's claim for nonservice-connected disability pension benefits is discussed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran's service-connected ventral incisional hernia condition is manifested by large and/or multiple hernias with complaints of pain and functional limitations. 2. The record contains evidence of a current diagnosis of a neck disorder and competent medical evidence of a nexus between the current disorder and the veteran's in-service motor vehicle accident in April 1980. CONCLUSIONS OF LAW 1. The criteria for a 40 percent evaluation for service- connected ventral incisional hernia have been met; the criteria for an evaluation in excess of 40 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.114, Diagnostic Codes 7339 (1999). 2. The claim of entitlement to service connection for a neck disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Neck Disorder I. Factual Background The veteran's service medical records note that the veteran was involved in a motor vehicle accident in April 1980, in which he was thrown from the car. Complaints of left shoulder pain were noted following the accident. The service medical records contain no complaints, diagnoses, or opinions of neck pain or pathology. The veteran's separation medical examination, in June 1975 noted no abnormalities of the neck or spine. In December 1995, the veteran filed a claim for service connection for three ruptured discs in his neck. The veteran stated that these were incurred in a car accident in April 1980. A VA examination was conducted in January 1996. The veteran stated that the dislocated discs in his neck caused shoulder problems and severe headaches. A history of a motor vehicle accident in 1980, which resulted in loss of consciousness for three weeks and subsequent amnesia and headaches, was noted. Sensory and motor examination was intact. Full range of motion and no spasm were noted. The examiner reported tenderness along the left paraspinous. X-ray examinations of both shoulders and cervical spine were negative. The examiner provided an impression of facial/cranial pain without trigger point, possibly secondary to head trauma. In a "Statement of Patient's Treatment," dated in September 1996, a VA physician stated that the veteran had ruptured cervical discs and that this condition was probably related to the accident in 1980. II. Analysis Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d). The threshold question to be answered in the veteran's appeal is whether he has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy, 1 Vet. App. 78 (1990). The United States Court of Appeals for the Federal Circuit held that, "For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. §§ 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). The statement of the VA physician in September 1996 reported that the veteran had a current neck disability - ruptured cervical discs. The veteran's service medical records note that he was involved in a motor vehicle accident in April 1980, in which he was thrown from the car. The VA physician in September 1996 also stated that the veteran's neck condition was related to the 1980 in-service accident. Based on the service medical records, the veteran's statements, and the VA "Statement of Patient's Treatment" dated in September 1996, the Board finds that the veteran's claim for service connection for a neck disorder is well grounded. 38 U.S.C.A. §5107(a) (West 1991). The VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1999). The Board finds that further development is necessary to meet this duty and such development is ordered in the remand portion of this decision. Increased Evaluation for Ventral Incisional Hernia III. Factual Background The veteran's service medical records show repair of a ventral incisional hernia in July 1981. In November 1981, the veteran underwent a second ventral incisional herniorrhaphy at a VA facility. By rating decision in July 1982, the RO granted service connection for a ventral incisional hernia with a noncompensable evaluation, effective from July 31, 1981. In December 1982, the veteran was again hospitalized with a diagnosis of multiple recurrent incisional hernias and a ventral herniorrhaphy was performed. By rating decision in August 1983, the RO granted an increased evaluation of 10 percent for service-connected ventral incisional hernia, effective from February 1, 1983. By rating decision in February 1988, the RO reduced the evaluation to 0 percent, effective May 1, 1988. VA outpatient treatment records in October 1993 noted complaints of recurrence of the ventral hernia. The examiner noted the existence of a large incisional hernia and referred the veteran to general surgery. In July 1994, the veteran reported that his hernias had been painful since January 1993. In November 1994, the veteran was again referred to the surgery clinic for further treatment. In January 1994, the veteran requested that his service- connected ventral hernia be re-evaluated. VA examinations were scheduled for April 1994, September 1994, and February 1995, but the veteran failed to report for these examinations. By rating decision in September 1994, the RO granted an increased evaluation of 20 percent for service- connected post-operative ventral incisional hernia, effective from January 14, 1994. In a "Statement of Patient's Treatment," dated in October 1995, a VA physician stated that the veteran had multiple ventral hernias, which could be aggravated by heavy lifting. The veteran was restricted from lifting more than five pounds and from doing any prolonged standing or excessive bending until January 1996. A VA examination was conducted in January 1996. The veteran reported "a lot of stomach pain." Physical examination revealed pain to palpation on the left and a vertical scar. The examiner provided a diagnosis of abdominal pain status- post abdominal injury and surgery. In his notice of disagreement, received in August 1996, the veteran stated that his hernia kept him from working, as standing or walking for extended periods caused pain. A VA examination was conducted in July 1997. The examiner noted multiple, easily reducible ventral hernias in the area of the mid-abdominal scar. Mild tenderness of the lower abdomen was also noted. A diagnosis of post-operative multiple ventral hernias was reported. IV. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). Under the Schedule, post-operative ventral hernias are evaluated as follows: ? 100 percent for 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; ? 40 percent if large and not well supported by belt under ordinary conditions; and ? 20 percent if small and 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, Diagnostic Code 7339 (1999). A VA physician in October 1993 noted the existence of a large incisional hernia. VA examination in July 1997 noted multiple ventral hernias with mild tenderness. The veteran has repeatedly stated that his service-connected hernias prevent him from lifting, standing or walking for extended periods. The Board finds that the veteran's symptomatology most closely approximates the criteria for a 40 percent evaluation under the Schedule. The veteran's hernia has alternatively been described as "large" and "multiple." Although the possible utility of a belt for support of the veteran's hernia is not noted, the Board finds that the evidence of record does not preponderate against an evaluation of 40 percent due to the medical characterizations of the veteran's service-connected hernia and the necessary repeated surgery for this condition. The Board finds that the evidence does preponderate against an evaluation in excess of 40 percent, as the record contains no evidence of the symptomatology enumerated in the Schedule for a 100 percent evaluation. ORDER Entitlement to an evaluation of 40 percent for service- connected ventral incisional hernia is granted. The claim of entitlement to service connection for a neck disorder is well grounded. To this extent, the appeal is granted. REMAND Because the claim of entitlement to service connection for a colon disorder is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In his claim for nonservice-connected disability pension benefits, the veteran stated that he was requesting pension benefits, "if his disability ratings is (sic) not increased." The most recent complete medical examination was conducted in January 1996, more than four years ago. The Board finds that such examination is an insufficient basis upon which to assign appropriate rating for each disability of record using the approach mandated by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should request that the veteran identify all medical care providers who have treated him for his neck disorder since discharge from service. After securing the necessary release, the RO should obtain these records. 2. The RO should request that the veteran identify all medical care providers who may possess additional records pertinent to his claim for nonservice-connected disability pension benefits. After securing the necessary release, the RO should also obtain any of these records not previously obtained. 3. The RO should arrange for an examination of the veteran by an appropriate VA specialist for the purpose of ascertaining the current nature, extent of severity, and etiology of the veteran's neck disorder. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner should perform any testing necessary to provide an assessment of the veteran's condition. The examiner should note the existence and location of any "ruptured cervical discs." The examiner should express an opinion as to whether the veteran's current neck disorder is due to or was aggravated by any incident of service, including the 1980 motor vehicle accident. 4. The RO should arrange for a VA general medical examination of the veteran to determine the current nature and extent of all currently present disabilities. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner should perform any testing necessary to provide an assessment of the veteran's condition. All manifestations of current disability should be described, and the examiner should provide an opinion concerning the impact of each disability on the veteran's ability to work, to include an opinion as to whether the disabilities are sufficient in combination to preclude the veteran from working. The rationale for all opinions expressed should also be provided. 5. The RO should carefully review the examination reports to ensure that they are in full compliance with this remand, including all of the requested findings and opinions. If not, the reports should be returned to the examiner(s) for corrective action. 6. The RO should then adjudicate the claims for service connection for a neck disorder and entitlement to nonservice- connected disability pension benefits. If any claim remains denied, the veteran should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites any applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. The veteran should then be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The veteran need take no action until he is notified. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (1999). 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). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. John E. Ormond, Jr. Member, Board of Veterans' Appeals