12-34 162
12-34 162
| Board of Vet. App. | May 31, 2017Background
- Veteran served active duty July 1968–July 1971 and sustained an abdominal gunshot wound in 1970 with laparotomy; scar and small ventral hernia noted in VA exams.
- Service connection for an abdominal scar was granted in April 2011 (noncompensable); December 2011 RO assigned a noncompensable rating for ventral hernia and the Veteran appealed that hernia rating.
- VA examinations (2010–2013) documented a small, operable ventral hernia confirmed by ultrasound, with pain on heavy lifting/bending but no muscle involvement or weakening of the abdominal wall.
- No supporting belt was indicated by examiners and there was no demonstrated effect on occupation/daily activities sufficient to show marked interference.
- The Board evaluated the claim under 38 C.F.R. § 4.114, Diagnostic Code 7339 (post-operative ventral hernia) and found the evidence did not meet criteria for the minimum compensable (20%) rating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to an initial compensable rating for ventral hernia | Hernia causes pain with lifting and limits work — warrants compensable rating | Evidence shows small hernia, no weakening of abdominal wall, no belt indicated, no marked work interference | Denied: criteria for 20% (or higher) not met; noncompensable rating affirmed |
| Extraschedular referral warranted? | (Implicit) Disability may be inadequately captured by schedular rating | No exceptional picture or related factors such as marked employment interference or frequent hospitalization | Denied: second Thun element not satisfied; no referral |
Key Cases Cited
- Shinseki v. Sanders, 556 U.S. 396 (duty to consider evidence and standard for appellate review)
- Conway v. Principi, 353 F.3d 1369 (VA notice/assistance principles)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit of the doubt rule in VA claims)
- Thun v. Peake, 22 Vet. App. 111 (standards for extraschedular consideration)
- Hart v. Mansfield, 21 Vet. App. 505 (staged ratings and variations in severity)
- Amberman v. Shinseki, 570 F.3d 1377 (rules on separate ratings and overlapping symptomatology)