Citation Nr: 0002126 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 96-50 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for a lung disorder. 2. Entitlement to an evaluation in excess of 20 percent for an incisional hernia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. S. Toth, Counsel INTRODUCTION The veteran had active service from August 1976 to February 1979. This matter arises from a September 1996 determination by the VA Regional Office (RO) in Roanoke, Virginia, that new and material evidence had not been submitted to reopen a claim for service connection for a lung disorder. The RO first denied service connection for a lung disorder manifested by hemoptysis in a February 1984 rating decision. Following the veteran's April 1988 request to reopen the claim, the RO in September 1988 confirmed the denial of service connection for a lung disorder. The veteran appealed that determination to the Board of Veterans' Appeals (Board), which issued a decision in July 1990 that denied service connection for a lung disorder manifested by hemoptysis. Following the submission of a medical statement in March 1992, the RO reopened the claim in May 1992, finding that new and material evidence had been submitted, but then denied the claim on the merits. In an appellate decision of June 1993, the Board also reopened the claim and then denied the claim on the merits. In March 1994, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") issued a decision that vacated the Board's decision. The Court found that the Board erred by issuing a decision on the merits as the evidence submitted to reopen the claim was not new and material. That decision was appealed to the United States Court of Appeals for the Federal Circuit, which dismissed the appeal in June 1994. In February 1998, the Board remanded the case so the RO could vacate the May 1992 rating decision. The issue of an increased rating for an incisional hernia arises from a rating decision of February 1999, which denied an evaluation in excess of 20 percent. In the February 1998 remand, the Board also requested that the RO issue a Statement of the Case (SOC) with respect to a claim for nonservice-connected pension benefits. It was noted that the veteran had filed a Notice of Disagreement in June 1992, in response to an unfavorable May 1992 rating decision on the matter, but that the RO had not yet issued a SOC. In March 1998, the RO issued a SOC under cover of a letter that provided the appellant with notice of the time limit during which he could respond with a Substantive Appeal. He was further informed that the appeal would be closed if a Substantive Appeal was not filed. Review of the claims file does not indicate that the veteran filed a Substantive Appeal with respect to this issue, and therefore, the Board will not consider the pension matter. FINDINGS OF FACT 1. Service connection for a lung disorder was denied by the Board in a decision of July 1990. 2. As the additional evidence added to the record since the Board's July 1990 decision is neither duplicative nor redundant, and as it bears directly and substantially upon the specific matter under consideration, it must be considered in order to decide the merits of the claim. 3. There is no competent evidence of a nexus between a current lung disorder and either alleged asbestos exposure in service or lung disorders and treatment for hemoptysis that were noted in service. 4. The service-connected incisional hernia is principally manifested by subjective complaints of pain, nausea and vomiting; the recent medical evidence shows that there has not been a recurrence of the hernia. CONCLUSIONS OF LAW 1. The July 1990 Board decision is final. 38 U.S.C.A. §§ 7104 (West 1991 & Supp. 1999). 2. Evidence received since the July 1990 Board decision is new and material and the claim for service connection for a lung disorder is, therefore, reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim for service connection for a lung disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The criteria for an evaluation in excess of 20 percent for an incisional hernia have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.3 4.7, 4.114, 4.118, Diagnostic Code 7339 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The medical examination report that was completed when the veteran entered active service indicated that the veteran's lungs and chest were normal. In the medical history form, the veteran reported that he had never had nor did he then have: (1) ear, nose or throat trouble; (2) chronic or frequent colds; (3) asthma; (4) shortness of breath; (5) pain or pressure in chest; or (6) a chronic cough. Service medical records show that the veteran was seen in September 1976 complaining of a sore throat. Examination revealed that the throat was irritated with minimal exudation and that the tonsils were enlarged. The chest was clear with strong and steady heartbeats. The diagnostic impression provided was that of an upper respiratory infection. The veteran was again seen in October 1976 complaining of upper respiratory infection symptoms. The tonsils were within normal limits as were his nodes and breathing. In January 1977, the veteran was seen with a cough and sore throat. Chest x-ray results were within normal limits and the assessment provided was that the veteran had a viral syndrome. Approximately one week later, the veteran was again seen complaining of a cough and was assessed as having a viral syndrome. The following day, when the veteran complained of a productive cough and congestion of the head and chest, the diagnosis provided was bronchitis. In February 1977, while the veteran was hospitalized for hepatitis, it was noted in the clinical record that a chest x-ray showed old healed granulomatous disease. In September 1997, the veteran was seen for complaints of cold symptoms that he had had for the past three weeks. A chest x-ray did not note any infiltrates. The impression was a viral upper respiratory infection. In October 1977, the veteran's chest and lungs were clear upon physical examination. The assessment was resolved viral respiratory syndrome. In November 1977, the veteran was seen complaining of a cough with yellowish sputum and was diagnosed as having bronchitis. In August 1978, the veteran was diagnosed as having bronchitis after he was seen complaining of pain on breathing and a productive cough. In January 1979, the veteran was treated for hemoptysis of two days duration. Examination revealed that he had crusted nasal polyps on the right side which were probably the source of the bleeding. The veteran's separation examination report, which was dated five days later, indicated that his nose, lungs and chest were normal. In February 1981, the veteran filed a claim for service connection for lung problems, spitting up and vomiting blood, which reportedly started in January 1979. The RO sent the veteran a letter in March 1981 which asked him to submit recent medical evidence. In November 1983, various medical treatment records were received from the veteran. In August 1979, the veteran was hospitalized in a VA facility to assess and treat complaints of coughing up blood. Both the bronchoscopy and chest x-ray were within normal limits according to the hospital summary. The discharge assessment was hemoptysis, etiology unknown. In February 1981, the veteran was hospitalized at St. Vincent's Infirmary with complaints of abdominal pain, vomiting, and spitting up blood while coughing. He gave a history of working around asbestos in the Navy and advised that he was hospitalized several times in service for hemoptysis. Upon admission, the diagnosis was hemoptysis of undetermined etiology, recurrent since 1979. Physical examination upon admission revealed the presence of bilateral basicular rhonchi and no rales. A chest x-ray and pulmonary function tests were normal, while the bronchoscopy report listed an impression of hemoptysis, precise etiology undetermined. The discharge diagnoses were acute bronchitis with secondary hemoptysis and abdominal pain that was probably viral gastroenteritis. A chest x-ray taken at Van Buren County Hospital in October 1983 showed no evidence of cardiopulmonary disease. Upon VA examination in January 1984, the veteran reported that he last spit up blood in November 1983. Upon physical examination, the lungs were clear and there was no coughing on deep breathing. A chest x-ray report indicated that there was no definite evidence of active cardiopulmonary disease. The diagnosis was hemoptysis by history, etiology unknown. The RO denied service connection for hemoptysis in a February 1984 rating decision finding that the veteran had hemoptysis in 1981 that was felt to be due to acute bronchitis but there was currently no disability found that resulted in hemoptysis. In April 1988, the veteran filed a claim to reopen. In May 1988, the RO received VA medical records, dated from March to May of 1988, which revealed that the veteran had a cholecystectomy in April 1988 after a gallstone was discovered. The medical records dated in the two months prior to the surgery indicated that the veteran was seen with complaints that included diarrhea, vomiting, upper quadrant pain and epigastric burning and pain that radiated to his shoulders and back. In the month after the surgery, the veteran complained of shooting pain across the mid-abdomen, fever, vomiting, nausea and diarrhea. Physical examination revealed deep tenderness in the vicinity of the incision. Regarding the lung condition, it was noted, in a medical record dated in March 1988, that a chest x-ray was routine but, in reviewing the veteran's records, it was noted that a chest x-ray from 1984 suggested interstitial changes. In June 1988, additional VA medical records were received which were dated from March 1987 to March 1988. A treatment record dated in April 1987 showed that the lungs were clear. The RO confirmed the denial of service connection for a lung condition in a September 1988 decision. In a July 1990 decision, the Board denied service connection for a lung disorder manifested by hemoptysis finding that the pulmonary conditions and episode of hemoptysis treated in service were acute and transitory and resolved without residual disability. In March 1992, the RO received a medical statement completed by James Williams, M.D., which revealed that the veteran was seen during that month with a cough and congestion. He was diagnosed as having bronchitis. By way of a May 1992 decision, the RO found the medical statement to be new and material evidence to reopen the claim for service connection for a pulmonary condition and hemoptysis but denied the claim on the merits. In May 1992, the RO received a claim for entitlement to service connection pursuant to 38 U.S.C.A. § 1151 for disability that resulted from the gall bladder removal. In June 1992, the veteran submitted medical records from Lakeview Medical Center that were dated from May to July of 1991 and from Louise Obici Memorial Hospital dated in May 1991. In a May 1991 medical record from Lakeview Medical Center, it was noted that there was no evidence of a recurrent hernia upon physical examination but that the right upper quadrant scar was poorly healed with numbness below the incision and several areas of tenderness. The assessment was that the veteran probably had neuroma formation within the old cholecystectomy and hernia repair sites. Later that month at the Louise Obici Memorial Hospital, the veteran had surgery that consisted of wound exploration with repair of a ventral hernia using Marlex. The postoperative diagnosis was a ventral hernia. A medical record of July 1991 indicated that the veteran's hernia repair scar that was previously keloid was again beginning to form a keloid. In April 1992, the RO received additional VA medical records dated from December 1981 to April 1990. In a hospital summary of March 1984, it was noted that the veteran had flu symptoms and that a chest x-ray was taken that showed the interstitial patter to be slightly increased from the previous x-ray of December 1981. In a decision of June 1993, the Board found that the veteran had submitted new and material evidence to reopen the claim but denied the claim on the merits. The veteran appealed that determination to the Court which, in a decision of March 1994, concluded that Dr. William's statement was not new and material evidence. The Court found that the statement did not bear on whether the appellant has a chronic lung condition or other disorder manifested by hemoptysis which had its onset in service and thus the statement did not raise a reasonable possibility that, when it was viewed in the context of all the evidence, it would change the outcome. Accordingly, the Court vacated the Board's decision because the appellant's claim should not have been reopened following the Board's final denial of July 1990. The veteran appealed that decision to the United States Court of Appeals for the Federal Circuit, which dismissed the appeal in June 1994. The Federal Circuit noted that, pursuant to 38 U.S.C. § 7292, it could only review challenges to the validity or interpretation of a statute or regulation, or to the interpretation of a constitutional provision, that the Court had relied on its decision. As the veteran's appeal amounted only to a request for review of factual determinations and the application of the law to the facts of the case, the Federal Circuit concluded that it did not have jurisdiction over his appeal. In April 1995, the RO received VA medical records dating from March 1988 to May 1989. In March 1989, the veteran underwent a surgical incisional hernia repair. During the 6 weeks prior to the surgery, the veteran had bulging with intermit pain along the medial aspect of the incision. In May 1989, the veteran was diagnosed as having an incisional hernia recurrence and again underwent surgical repair. In August 1995, the RO issued a decision that granted entitlement to compensation for a recurrent post- cholecystectomy incisional hernia pursuant to the provisions of 38 U.S.C.A. § 1151. A 20 percent evaluation was assigned pursuant to Diagnostic Code 7339. In April 1996, the veteran's representative filed a claim for an increased evaluation and stated that medical information would soon be provided. In May 1996, the veteran filed a claim to reopen the claim for service connection of a lung condition. In June 1996, the RO received medical records reflecting inpatient treatment at Louise Obici Memorial Hospital in August 1994 for pneumonia. A chest x-ray report included an impression that the veteran had chronic interstitial lung disease. Diagnoses included in the discharge summary included chronic obstructive pulmonary disease. The veteran was again hospitalized in July 1995 for acute bronchitis, asthma and bronchospasm. Physical examination upon admission indicated that he had an occasional inspiratory and expiratory wheeze. The previous surgical scars in the gall bladder area were nontender. A chest x-ray result indicated that no acute disease was seen. Medical records from Lakeview Medical Center dated from October 1995 to April 1996 were received which contained a pulmonary function test report dated in October 1995. The interpretation of the testing was that the veteran had physiologically large lungs and extrathoracic airway obstruction. The veteran reported that he smoked about one pack of cigarettes per week for the past 20 years. While the veteran reportedly quit one year ago, the examiner noted that he smelled of cigarette smoke during the examination. The diagnosis provided in October 1995 and April 1996 was chronic bronchitis. In February 1998, the Board remanded the case for the RO to vacate the May 1992 rating decision which found that new and material evidence had been presented to reopen the claim for service connection for a lung disorder. The RO was also asked to obtain the Social Security Administration (SSA) decision and the medical records underlying the SSA decision. In April 1998, the RO obtained copies of the medical records considered by SSA and a copy of the SSA decision on disability benefits dated in August 1989. In August 1980, the veteran was seen complaining of burning pain in the left posterior chest and around to the front. The diagnosis provided was pleuritic chest pain. In February 1984, he was diagnosed as having an upper respiratory infection, possible influenza. In October 1985, the veteran was discharged from a period of VA hospitalization with diagnoses of: chronic depression; possible complex partial seizures; history of asbestosis, status post-collapsed lung, etiology unknown; and tobacco abuse. Upon physical examination, the lungs were clear. A chest x-ray report of July 1988 indicated that the lungs were clear. The x-ray impression was that the chest was normal. Also during that month, the veteran was seen complaining that he had been vomiting blood after being hit in the abdominal region by a fellow patient. The impression was hemoptysis vs. hematemesis of questionable etiology. Examination did not reveal any evidence of abdominal pathology. In February 1989, the veteran was seen with complaints of gas and inability to sleep due to a tender epigastric hernia. Physical examination revealed a subcostal incisional reducible midline hernia. The impression was "repair epigastric [incisional hernia]". In April 1989, the veteran was seen complaining of having been hit in the incision site. Examination revealed that it was very tender to palpation along the incision line. There was no hematoma or break in the incision and the incision was healing well. He was a little sore from being punched. The SSA decision on disability benefits noted that the medical evidence showed that the veteran had gallbladder and hernia surgeries, but that his primary impairment was a personality disorder. The decision of the Administrative Law Judge was that the veteran was entitled to a period of disability commencing in January 1988. In November 1998, the veteran underwent a VA examination. The veteran reported that he had to take Mylanta for stomach pain and that he was constantly nauseous and vomited frequently after eating. Abdominal examination revealed no evidence of an inguinal hernia or ventral hernia. There was no evidence of diastasis recti, and the abdominal wall muscles and fascia surrounding the surgical scar were within normal limits. There was a 29 cm. x 1 cm. tender scar from the mid-epigastric area around the right flank toward the back. There was keloid formation of the scar, but there was no evidence of an incisional hernia. The diagnosis provided was incisional hernia of a gallbladder scar that was surgically repaired with insertion of a Marlex Patch with no current evidence of recurrence. In March 1999, the veteran contacted the RO to advise that he felt the VA examination was insufficient. A medical examination was scheduled for May 1999, and the veteran was notified by letter dated in April 1999. The veteran called to report that he could not make the scheduled appointment, and another appointment was arranged. Instead of reporting for the examination, the veteran left a voice mail message for a VA employee which indicated that he would not accept an examination where no medical procedures were done and where medical records were not looked at. By way of a June 1999 rating decision, service connection was granted for a tender incisional hernia scar, pursuant to the provisions of 38 U.S.C.A. § 1151, and a 10 percent evaluation was assigned. Analysis Except as provided in 38 U.S.C.A. § 5108, when a claim is disallowed by the Board, a claim upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b) (West 1991). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. 3.156(a) (1999). The test for new and material evidence, that was in effect at the time that this claim to reopen was filed, was summarized by the Court in Evans v. Brown, 9 Vet. App. 273 (1996). VA must first determine whether the newly presented evidence is "new," that is, not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record. If new, the evidence must be "probative" of the issues at hand. If the evidence is new and probative, then, in light of all the evidence of record, there must be a reasonable possibility that the outcome of the claim on the merits would be changed. Evans at 283; see also Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). During the pendency of this appeal, however, the United States Court of Appeals for the Federal Circuit overruled the Colvin requirement that there be a reasonable possibility of a change in outcome and held that the Department of Veterans Affairs regulation on reopening, 38 C.F.R. § 3.156(a), must govern decisions on whether to reopen previously and finally disallowed claims. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In its decision of March 1994, the Court determined that Dr. Williams' medical statement was not new and material evidence and, therefore, the Board's decision of July 1990 was final. In general, under the law of the case doctrine, questions settled on a former appeal of the same case are no longer open for review. See Allin v. Brown, 10 Vet. App. 55, 57 (1997). Accordingly, the Board would ordinarily be bound by the decision of the Court, and would not be able to consider whether Dr. Williams' statement of 1992 is new and material evidence, in light of Hodge. However, there is an exception to the law of the case doctrine when the controlling authority has since made a contrary decision of law. See Chisem v. Gober, 10 Vet. App. 526, 528 (1997) (citing Kori Corp. v. Wilco Marsh Buggies and Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir. 1985)). In Winters v. West, the Court of Appeals for Veterans Claims observed that there was no question that Hodge changed the controlling law and that the Colvin v. Derwinski, 1 Vet. App. 171 (1991), test had been replaced by a less restrictive standard which places emphasis upon the language of 38 C.F.R. § 3.156(a). Winters, 12 Vet. App. 203, 207 (Feb. 17, 1999) (en banc). Since there has been a clear change in the law regarding the reopening of claims, the Board is not bound to follow the earlier decision of the Court in this case, and instead may now consider whether Dr. William's statement is new and material evidence pursuant to the guidance set forth in Hodge. In the July 1990 decision, the Board found that a chronic lung disorder manifested by hemoptysis was not incurred in or aggravated by service. At the time of that decision, the medical evidence of record did not indicate that the veteran then had a lung condition. While the medical evidence did show that the veteran complained of spitting up blood back in 1979 and 1981, and that he was diagnosed in 1981 as having acute bronchitis, the medical evidence dating from 1981 to 1988 revealed no treatment for or diagnosis of a lung condition. When he was examined by VA for compensation purposes in 1984, the veteran reported that he last spit up blood in 1983, the physical examination indicated that there were no objective findings of a lung condition and the diagnosis was hemoptysis by history. Furthermore, in April 1987, a medical treatment record indicated that his lungs were clear and in a March 1988 treatment record, it was noted that the chest x-ray was routine. The newly submitted medical evidence, however, shows that the veteran has recently had treatment for and been diagnosed as having diseases of the lungs. In 1992, the veteran was diagnosed as having bronchitis by Dr. Williams. In 1994, while hospitalized at Louise Obici Memorial Hospital, he was diagnosed as having chronic obstructive pulmonary disease. In 1995, during another period of hospitalization, he was diagnosed as having acute bronchitis, asthma and bronchospasm. Moreover, in October 1995 and April 1996, according to medical records that were received from Lakeview Medical Center, he was diagnosed as having chronic bronchitis. This newly submitted evidence is not cumulative or redundant of evidence which was of record in 1990. Furthermore, since the evidence available to the Board in 1990 did not reflect that the veteran had a lung condition, this newly submitted evidence is so significant to the veteran's claim that the Board must consider it in order to fairly decide the merits of the claim. Accordingly, the claim for service connection for a lung disorder is reopened. In order 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 injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well- grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In this case, the veteran has presented medical evidence of a current disability. There is also medical evidence of inservice occurrence of lung disorders-diagnosed as upper respiratory infection, viral syndrome and bronchitis-and treatment for hemoptysis. Moreover, allegations have been made that the veteran was exposed to asbestos in service. What is lacking is medical evidence of a nexus between a current lung disorder and the alleged exposure to asbestos, lung disorders or treatment for hemoptysis which were noted in service. While the veteran, pursuant to Savage, is competent to attest to symptomatology of the lungs which has continued since service, he is not competent to provide evidence of a nexus between that symptomatology and a current lung disability, as medical evidence on that point is required. Since medical evidence has not been presented that provides a nexus between a current lung disability and alleged exposure to asbestos or lung conditions, including treatment for hemoptysis, in service the claim for entitlement to service connection for a lung disability is not well grounded. Accordingly, VA is not required to assist the veteran in the development of his claim pursuant to 38 U.S.C.A. § 5107(a). Regarding the lung disability, it has been argued that the matter should be remanded to obtain a medical opinion as to whether the current disabilities are related to the symptoms noted in service. It was also argued that should the Board find that the claim is not well grounded, the claim should nonetheless be remanded because the VA Adjudication Procedure Manual, M21-1, provides that if a claim is potentially plausible, the RO must initiate development. M21-1, Part VI, Par. 2.10f (Apr. 21, 1997); see also M21-1, Part VI, Par. 1.01b (May 19, 1997) (Request an examination if there is reasonable probability of a well-grounded claim and the evidence of record is insufficient for rating all of the claimed and noted disabilities.). However, in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court of Appeals for Veterans Claims issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Accordingly, the Board cannot remand for a medical opinion on whether there is a nexus between currently diagnosed lung disorders and lung conditions or symptoms that were noted in service. Concerning the veteran's claim for an increased rating for an incisional hernia, the Board finds that the veteran has presented a claim for an increased evaluation for an incisional hernia that is plausible and capable of substantiation and therefore the claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). In that regard, the Court has held that a claim for an increased rating is generally well grounded if the claimant indicates that a service-connected condition has increased in severity since the last rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. The pertinent Diagnostic Code sections will be discussed below, as appropriate. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's incisional hernia is currently evaluated as 20 percent disabling under Diagnostic Code 7339, which contains the rating criteria for postoperative ventral hernias. Under Diagnostic Code 7339, a 20 percent evaluation is warranted for a small postoperative ventral hernia that is not well supported by a belt under ordinary conditions, or a healed ventral hernia or post-operative wounds with weakening of the abdominal wall and indication for a supporting belt. A 40 percent evaluation is warranted for a large postoperative ventral hernia which is not well supported by a belt under ordinary conditions. A 100 percent evaluation is warranted for a postoperative ventral hernia if there is 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. 38 C.F.R. § 4.114, Diagnostic Code 7339. Another code which may be applicable based on the veteran's reported symptomatology is Diagnostic Code 7346 which sets forth the rating criteria for hiatal hernias. While a hiatal hernia is anatomically a different disability than a postoperative ventral hernia, the veteran, in this case, has complained of gastrointestinal symptoms. A 10 percent evaluation is warranted if two or more of the symptoms for the 30 percent evaluation are present of less severity. A 30 percent evaluation is warranted if there is recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, that is productive of considerable impairment of health. A 60 percent evaluation is warranted if there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. After reviewing the evidence, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with the duty to assist. See 38 U.S.C.A. § 5107(a). Assertions have been made that the most recent VA examination was inadequate and that another examination should be scheduled. However, a review of the September 1998 examination report reveals that the abdominal area was examined but there was "no current evidence of recurrence" of the incisional hernia. As it is clear that the examiner provided a clinical assessment of the impairment, or lack thereof, due to the service-connected disability, there is no basis for the Board to find that the examination report was inadequate for rating purposes. The veteran's incisional hernia condition is currently evaluated as 20 percent disabling. In order for the Board to find that a 40 percent evaluation is warranted under Diagnostic Code 7339, there must be a large postoperative ventral hernia that is not well supported by a belt under ordinary conditions. In March 1989 and May 1989, the veteran underwent surgery to repair incisional hernias. The recent medical treatment records that are dated in 1994, 1995, and 1996, however, do not indicate that he has had a recurrence of the hernia. Nor did the VA examiner find that there had been a recurrence of the hernia when the veteran was examined in November 1998. Accordingly, an increased evaluation is not warranted pursuant to this code provision. With respect to the potential application of Diagnostic Code 7346, it is important to note that while the veteran complained to the VA examiner that he had experienced stomach pain, nausea, and vomiting, the examiner did not link the reported symptomatology to the incisional hernia disability. As the medical evidence does not link the symptomatology to the service-connected disability, and as the veteran is not competent as a lay person to link his symptoms to the service-connected disability as opposed to some other cause, the veteran is not entitled to an increased evaluation under the provisions of Diagnostic Code 7346. Furthermore, it is noted that this diagnostic code is not the appropriate code under which to rate the veteran's service- connected disability. Instead, the postoperative hernia disability is most appropriately rated under Diagnostic Code 7339, the code provision which sets forth the criteria for rating the functional impairment attributable to ventral hernias. In that regard, a ventral hernia is defined as a hernia through the abdominal wall, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 758 (27th ed. 1988), while a hiatal hernia is defined as the herniation of an abdominal organ, usually the stomach, through the esophageal hiatus of the diaphragm, DORLAND'S at 756. In this case, the veteran is service connected for an incisional hernia which, according to the medical evidence, did not involve the abdominal organs. As a result, the appropriate diagnostic code under which to rate this disability is Diagnostic Code 7339. Again, it is emphasized that Diagnostic Code 7346 has only been considered by the Board because the veteran has complained of gastrointestinal symptoms. While the medical evidence does show that the hernia scar is tender, the veteran has been awarded a separate 10 percent evaluation for the scar pursuant to Diagnostic Code 7804. Finally, the Board will address the applicability of 38 C.F.R. § 3.655 (1999). That section provides that a claim shall be denied if a claimant fails to report without good cause for an examination or reexamination that was scheduled in conjunction with a claim for an increase. 38 C.F.R. § 3.655(a), (b) (1999). Since the RO did not cite to and discuss this regulation in the March 1999 Statement of the Case, the veteran did not have an opportunity to argue that he had good cause for not reporting to the scheduled reexamination. Accordingly, it would be against the principles of fair process for the Board to deny the claim for an increased rating pursuant to 38 C.F.R. § 3.655, as the appellant has not had the opportunity to present evidence and argument on whether he had good cause for failing to report to the examination. Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board will not apply 38 C.F.R. § 3.655 in this decision. Moreover, in light of the Board's determination that an increased evaluation is not warranted pursuant to the diagnostic codes concerning the evaluation of functional impairment due to hernias, the Board finds that it is not necessary to develop the evidence with respect to whether the veteran had good cause for failing to report for the scheduled reexamination. ORDER New and material evidence to reopen the claim for entitlement to service connection for a lung disorder has been presented, and to the extent that the appeal has been reopened, the appeal is granted. A well-grounded claim not having been submitted, the reopened claim for service connection for a lung disorder is denied. A rating in excess of 20 percent for an incisional hernia is denied. STEVEN L. KELLER Member, Board of Veterans' Appeals