Citation Nr: 0810131 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-14 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of an inguinal hernia, post operative from October 1, 2004 through October 1, 2006. 2. Entitlement to a compensable rating for residuals of an inguinal hernia, post operative after October 1, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The veteran served on active duty from April 1977 to October 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which increased the evaluation of the right inguinal hernia, postoperative to 10 percent disabling, effective October 1, 2004, because evidence showed a recurrence of the inguinal hernia. In a rating decision dated March 2006, the RO reduced the veteran's evaluation of 10 percent to zero percent effective October 1, 2006 because a new VA examination showed that the hernia that recurred, which merited an increased rating, was a new hernia which was not the service-connected hernia. FINDING OF FACT By history and currently, the service-connected right inguinal hernia has been and continues to be manifested by subjective complaints of increased pain with standing and walking. The service-connected hernia is well healed with no evidence of recurrence. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of an inguinal hernia, post operative from October 1, 2004 through October 1, 2006, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7338 (2007). 2. The criteria for a compensable rating for residuals of an inguinal hernia, post operative after October 1, 2006, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7338 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS Pertinent Law and Regulations Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). While the veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Recently, in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim in such a case, however, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Under Diagnostic Code 7338, for inguinal hernias, a zero percent evaluation is warranted for not operated but remediable hernias, a 10 percent evaluation is warranted for postoperative recurrent, readily reducible and well supported by truss or belt inguinal hernias, a 30 percent evaluation is warranted for small, postoperative recurrent, or unoperated irremediable, not well supported by truss or not reducible inguinal hernias, and a 60 percent rating is warranted for large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible inguinal hernias. 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 (2007). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2007). Analysis The veteran asserts that his condition merits a rating in excess of 10 percent prior to October 2006 and a compensable rating thereafter. He contends that he has a small postoperative recurrent hernia which is documented in his medical files. In this case, the competent and credible medical evidence demonstrates that no more than a 10 percent rating is warranted for the veteran's residuals of an inguinal hernia prior to October 2006 and that no more than a compensable rating is warranted thereafter. A review of the record reveals that the veteran received an increased rating based on an April 2005 emergency room report. In that report, it was noted that the veteran had a recurrent inguinal hernia, which is not amenable to truss treatment and is small, placing him at risk of incarceration. The RO also considered the veteran's November 2004 VA examination report. In that report, the examiner noted evidence of recurrence of inguinal hernia, which is reducible and operable, with mild tenderness. However, on VA examination in March 2006, a VA examiner found that the veteran's service-connected right inguinal hernia was well repaired after surgery with no evidence of recurrence. The examiner noted that the veteran has a current direct inguinal hernia that protrudes through the abdomen wall. The VA examiner stated that this hernia is new and not a reoccurrence of the indirect inguinal hernia that the veteran had surgically repaired while he was on active duty. The examiner reported that the indirect inguinal hernia was well repaired with no evidence of recurrence. It is noted that this medical opinion was also reviewed by a chief physician at that VA facility. Upon reviewing the aforementioned evidence of record, the Board finds that the 2006 VA examiner's opinion is of great probative value because he reviewed the entire case file, noted both hernias and distinguished between them. The private physician during the emergency room consultation did not distinguish between the veteran's service-connected hernia and his nonservice-connected hernia. In fact, there is no indication that he knew of a preexisting hernia. Regarding the 2004 VA examination, it is noted that the examiner reported that although there was a recurrence of an inguinal hernia, it was reducible and operable with mild tenderness and the veteran was not using a truss or belt. Based on the aforementioned, the evidence clearly shows at no time prior to October 2006 did the veteran's service- connected inguinal hernia meet the criteria for a rating in excess of 10 percent. Additionally, since 2006, the evidence shows that the veteran's service-connected indirect inguinal hernia was well repaired with no evidence of recurrence. The Board acknowledges the representative's assertions set forth in February 2008. The representative stated, considering the description of direct and indirect hernia it is reasonable to concede the bulges are intrinsically intertwined either by predisposing the veteran to developing new hernias and/or his postoperative residuals superimposing on his new hernia. See also attached Internet Article. The representative also requested a new VA examination. However, the Board disagrees. The Board finds that the March 2006 VA examiner as well as the chief of his department clearly distinguished between the veteran's new direct inguinal hernia and the veteran's service-connected indirect inguinal hernia. The VA examination is also adequate as the examiner reviewed the veteran's claims file, reviewed his medical history, and examined him. The examiner then rendered an independent opinion and provided a rationale for his conclusion. As such, the Board finds that the VA examination report is competent and credible and wholly adequate the rate the current level of severity of the veteran's service- connected indirect inguinal hernia. The Board also acknowledges that it may only compensate the veteran for service-connected disability. It is only precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Such is not the case in this appeal. The VA examiner in March 2006 has distinguished between the veteran's service-connected and nonservice-connected disabilities. Finally, the Board has considered whether the veteran was entitled to a "staged" rating for his service-connected disability, as the Court indicated can be done in this type of case. See Hart v. Nicholson, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). However, upon reviewing the pertinent evidence of record, the Board finds that, at no time during the pendency of this appeal has the veteran's service- connected disability been more disabling than 10 percent prior to October 1, 2006 and zero percent thereafter. As an aside, it is also noted that because the 10 percent evaluation for the veteran's hernia had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a),(b), do not apply. The provisions of 38 C.F.R. § 3.344(c) provide that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. Under these circumstances, the appeal is denied. Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and that VA will request that the claimant provide any evidence in his possession that pertains to the claim. The Board concludes that the veteran has been afforded appropriate notice under the VCAA. In October 2004, the veteran received notice of what information must be submitted to substantiate a claim for an increased rating prior to the initial adjudication of the claim in February 2004. As to informing the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The letter stated that he would need to give VA enough information about the records so that it could obtain them for him. Finally, he was told to submit any medical records or evidence in his possession that pertained to his claim. Additionally, in March 2006, the veteran received general notice of what is needed to obtain a disability rating under the Diagnostic Code and examples of the type of evidence needed to substantiate his claim. See generally Vazquez- Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008). To the extent there existed any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), such error was nonprejudicial, in that it did not affect the essential fairness of the adjudicatory process. In point of fact, based on a review of the entire file, it is clear that the veteran had a full understanding and/or actual knowledge of the elements required to prevail on his claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Elements (1), (2) and (3) (veteran status, current existence of a disability and relationship of such disability to the veteran's service), are not at issue. Regarding elements (4) (degree of disability) and (5) (effective date of the disability), the veteran was provided with notice of the type of evidence necessary to establish a disability rating and an effective date in a March 2006 letter, thereby satisfying the requirements set forth in Dingess. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the veteran's service medical records, private medical records and VA treatment records. The VA also attempted to locate records from the VAMC in Palo Alto; however, the records could not be located. VA also provided the veteran with a VA examination in connection with his claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to a rating in excess of 10 percent for inguinal hernia, post operative from October 1, 2004 through October 1, 2006, is denied. Entitlement to a compensable rating for residuals of an inguinal hernia, post operative after October 1, 2006, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs