Citation Nr: 0809790 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 02-15 230A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for post operative left inguinal hernia, currently evaluated at 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION The veteran had active service from August 1976 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the VA Regional Office (RO) in Waco, Texas which denied entitlement to the benefits sought on appeal. FINDING OF FACT The veteran's left inguinal hernia is not shown to be small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for a left inguinal hernia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1- 4.14, 4.114, Diagnostic Code 7338 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of a letter from the RO to the veteran dated in April 2007. The RO provided the requisite notification regarding the disability ratings or the effective date that could be assigned in a March 2006 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges a recent decision from the United States Court of Appeals for Veterans Claims (Court) that provided additional guidance of the content of the notice that is required to be provided under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increased compensation benefits. Vazquez-Flores v. Peake, No. 0-355 (U.S. Vet. App. Jan. 30, 2008). In that decision, the Court stated that for an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the VA notify the claimant that to substantiate a claim the claimant must provide, or ask the VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at lease general notice of that requirement to the claimant. Vazquez- Flores v. Peake, No. 05-355, Slip op. at 5-6. While the veteran was clearly not provided this more detailed notice, the Board finds that the veteran is not prejudiced by this omission in the adjudication of his increased rating claim. In this regard, the veteran is represented by a National Veterans' Service Organization recognized by the VA, and the Board presumes that the veteran's representative has a comprehensive knowledge of VA laws and regulations, including those contained in Part 4, the Schedule for Rating Disabilities, contained in Title 38 of the Code of Federal Regulations. In addition, after the veteran and his representative were provided copies of the Statement of the Case, the representative submitted a VA Form 646 (Statement of Accredited Representative in Appealed Case), or its equivalent, in which the representative essentially acknowledged receipt of that document. The Statement of the Case issued to the veteran contained a list of all evidence considered, a summary of adjudicative actions, all pertinent laws and regulations, including the criteria for evaluation of the veteran's disability, and an explanation for the decision reached. In the Board's opinion all of the above demonstrates actual knowledge on the part of the veteran and his representative of the information to be included in the more detailed notice contemplated by the Court. As such, the Board finds that the veteran is not prejudiced based on this demonstrated actual knowledge. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and his representative have been kept informed of the RO's actions in this case by way of the Statement of the Case, and been informed of the evidence considered, the pertinent laws and regulations and a rationale for the decision reached in denying the claim. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. The veteran essentially contends that the current evaluation assigned for his left inguinal hernia disability does not accurately reflect the severity of that disability. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board is also required to consider whether the veteran may be entitled to a staged rating. Therefore, in this claim, the Board has assessed the level of disability from the date of initial application for service connection to the present, determining whether the level of impairment warrants different disability ratings at different times over the life of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). A review of service medical records indicates that the veteran underwent left inguinal hernia repair surgery while on active duty in 1977. Post service, the veteran underwent a second left inguinal hernia surgery in 1998, and the RO awarded a 100 percent evaluation while the veteran recovered from surgery from January 1998 to February 1998. After recovery, the veteran was found by the RO to have a noncompensable evaluation for left inguinal hernia. In January of 2002 the veteran was treated at a VA hospital and diagnosed with a recurrent left inguinal hernia. A VA examination was conducted in April 2002. At that time the veteran was found to have a recurrent left inguinal hernia which was said to be reducible. In July of 2002 the RO evaluated the veteran's hernia disability as 10 percent disabling effective January 30, 2002, under Diagnostic Code 7338, and the veteran perfected a timely appeal. A review of additional medical records indicates that the RO attempted to schedule VA examinations in November 2003 and April 2007. The record indicates that the veteran was unable to attend these examinations due to incarceration. However, it does appear that the veteran was transported to a hospital for treatment in June 2003 and September 2003. During those visits the veteran was said to have a reducible left inguinal hernia. Under 38 C.F.R. § 4.114, Diagnostic Code 7338, a 10 percent evaluation is for assignment for a postoperative recurrent inguinal hernia that is readily reducible and well supported by a truss or belt. The next higher 30 percent evaluation is for assignment for a small, postoperative recurrent inguinal hernia or unoperated irremediable, not well supported by truss, or not readily reducible. Based upon the above medical information, the Board finds that the criteria for a 10 percent rating, but no more, have been met. The medical evidence is clear that the veteran's hernia is postoperative and recurrent. However, while examinations of the veteran's left inguinal hernia in 2002 and 2003 did not speak to the issue of whether the veteran's hernia was well-supported by truss, all recent examinations have indicated that the veteran's hernia was reducible. As such, the criteria for a 30 percent or higher rating have not been met and a rating higher than 10 percent is not warranted. ORDER An evaluation in excess of 10 percent for a left inguinal hernia is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs