Citation Nr: 1006352 Decision Date: 02/19/10 Archive Date: 03/02/10 DOCKET NO. 05-00 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased disability rating for service- connected residuals of a post-surgical right inguinal hernia with scar, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from July 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the benefits sought on appeal. In April 2009, the Board remanded the Veteran's claim for additional development. As a preliminary matter, the Board finds that the remand directives have been substantially completed, and, thus, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The residual scar of a post-surgical right inguinal hernia, which measures 9 centimeters (cm) in length and .3 cm in width, is stable, with no adherence, instability or tissue loss. There is no evidence of ulceration, inflammation, or associated limitation of function. 3. The Veteran's post-surgical right inguinal hernia is productive of a recurrent, readily reducible hernia. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for post-surgical right inguinal hernia scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2009). 2. The criteria for a separate disability rating of 10 percent for the Veteran's service-connected post-surgical right hernia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7338 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran submitted his claim for an increased disability rating in February 2004 and the Veteran was sent a letter in March 2004. The letter notified him that, to substantiate a claim for increased compensation, the evidence must show that his service-connected disability had gotten worse. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was not informed regarding the assignment of disability ratings and effective dates or the types of medical and lay evidence that the Veteran may submit in conjunction with his claim; however, he was provided notification in a July 2009 letter. The letter informed the Veteran of the types of evidence that might show such a worsening of the disability, including statements from a doctor containing the physical and clinical findings; results of laboratory tests or x-rays; the dates of examinations and tests; and statements from other individuals who were able to describe from their knowledge and personal observations in what manner the disability had become worse. The Veteran was also informed that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. The Veteran was also notified as to the assignment of effective dates. Although the letter was not sent prior to initial adjudication of the claim, the Veteran was given an opportunity to respond following this notice and the claim was subsequently readjudicated in a November 2009 supplemental statement of the case and, therefore, any defect in the timing of the notice of this information was harmless. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The Board observes that there has been some confusion as to the Veteran's current address. However, VA has made multiple attempts to locate the Veteran to include contacting the American Heritage Credit Union and the Veteran's representative who both provided the same address. The letters were sent to the provided address, were not returned as undeliverable, and the Veteran has not contacted VA of any address change. See Woods v. Gober, 14 Vet. App. 214 (2000). There has been no clear evidence to rebut the presumption of regularity and, therefore, the Board presumes that government officials "have properly discharged their official duties" and the Veteran has received proper notification. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Therefore, VA's duty to notify has been met. VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim, including VA treatment records and providing VA examinations. The Veteran was provided VA examinations in April 2004 and July 2007 in conjunction with the appeal. Concerning this, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate as they were based on a review of the claims file and all pertinent evidence of record as well as physical examinations, and provide the medical information needed to address the rating criteria relevant to this case. The Board recognizes that the April 2009 Board remand instructed the RO/AMC to schedule the Veteran for another VA examination. As mentioned above, VA attempted to locate the Veteran several times to notify him of his scheduled VA examination by contacting the Veteran's representative, sending letters to the address provided by the Veteran's representative and the American Heritage Credit Union, and contacting the Veteran with his last known telephone number. See October 2009 report of information. In Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994), the Court noted that VA is required only to mail notice to the latest address of record in order for the presumption of regularity to attach. According to VA regulation, notification for VA purposes is written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q) (2009). In the normal course of events, it is the burden of the Veteran to keep VA apprised of his whereabouts. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). If he does not do so, there is no burden on the part of VA to "turn up heaven and earth" to find him. Id. Given the circumstances of this case, and the nature of the correspondence sent to the Veteran, the Board finds that VA's efforts are sufficient in light of Hyson. Id. As noted above, the RO sent the Veteran multiple letters at the last known address and the address provided by the Veteran's representative and American Heritage Credit Union and the mail was not returned as undeliverable. The Board finds that VA has made multiple attempts to contact the Veteran without any response or contact from the Veteran. Although the Board acknowledges the Veteran's representative's statement that further efforts should be made, the Board finds that VA has made sufficient efforts to contact the Veteran to no avail. As such, no further remand is necessary to locate the Veteran so that he might be rescheduled for a VA examination. There is no further duty on the part of the VA to contact the Veteran or further delay the adjudication of his claim. LAW AND ANALYSIS I. Increased rating As noted above, the Veteran has not apprised VA of any recent address change and has failed to report for an examination VA scheduled for him in conjunction with his claim. His own failure to cooperate with VA has made it impossible to obtain the evidence. If a Veteran desires help with his claim, he must cooperate with VA's efforts to assist him, to include reporting for scheduled examinations. See 38 U.S.C.A. §§ 5103A, 5107; also see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("[t]he duty to assist is not always a one-way street."). When a claimant, without good cause, fails to report for an examination scheduled in conjunction with an increased rating claim, the claim shall be denied. 38 C.F.R. § 3.655(b). However, as the Veteran did report to two examinations in conjunction with the current appeal, the Board will adjudicate the Veteran's claim based on the existing record. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran's service-connected residuals of a post-surgical right inguinal hernia with scar are currently provided a 10 percent rating under the rating schedule for skin disorders. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a disability rating in excess of 10 percent for his service-connected scar. The VA treatment records show that the Veteran has complained of pain and itching in his scar. The Veteran was afforded an examination in April 2004. The examination report shows that the Veteran had a scar of hernia repair with itching. He stated that his current symptom was itching, but that he could not scratch it because it was very sensitive. There was no functional impairment. There was a level scar present at the right inguinal region measuring about 9 centimeters by .3 centimeters. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, or limitation of motion. The examiner noted that the Veteran experienced itchiness and tenderness of the right inguinal herniorrhaphy scar. On examination, a non-disfiguring, level, and non-tender scar was noted in the right inguinal region. There was no evidence of a recurrent hernia. Based on the foregoing, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his scar. First, there is no evidence that the scar has an area exceeding 12 square inches. Therefore, a 20 percent rating is not available under Diagnostic Code 7801. 38 C.F.R. § 4.118. There is also no evidence that the scar is productive of limitation of motion, poorly nourished, unstable, or has ulceration. Indeed, the only symptoms noted were of tenderness and itching. Consequently, the Board finds that a disability rating in excess of 10 percent is not warranted for the disability under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805 for the entire appeal period. See Hart, supra. In reaching this determination, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the Board does find that the Veteran is entitled to a separate rating of 10 percent for his service-connected post-operative residuals of a right inguinal hernia under Diagnostic Code 7338. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The record shows that the Veteran has only been assigned a disability rating for his post-surgical right inguinal hernia scar. See July 1971 rating decision. However, the current medical evidence shows that the Veteran has a recurrent hernia. The July 2007 VA examination report reveals that the Veteran had a direct hernia at the medial aspect of his right inguinal hernia scar. It was approximately walnut sized when he coughed and was easily reducible. It was painful and tender to touch when the hernia was extruded. However, it was readily reducible. The examiner listed the conclusion as recurrence of right inguinal hernia. Inguinal hernias are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.114, Diagnostic Code 7338 (2009). If the hernia is small and reducible, or if it is not operated, but remediable, or if it is without true hernia protrusion, it warrants a zero percent (noncompensable) evaluation. If the hernia is postoperative recurrent, readily reducible, and well supported by a truss or belt, it warrants a 10 percent evaluation. If the hernia is small and postoperative recurrent, or if it is unoperated and irremediable, not well supported by a truss, or not readily reducible, it warrants a 30 percent evaluation. The highest available schedular evaluation, 60 percent, is warranted for a hernia that is large, postoperative, and recurrent; not well supported under ordinary conditions; not readily reducible; and considered inoperable. Id. In this case, the medical evidence shows that the Veteran had surgery on his hernia in August 1970 during active service. Currently, the medical evidence shows that the Veteran has a postoperative recurrent hernia that is small and readily reducible. See July 2007 VA examination report. There is no evidence that the Veteran requires or has a truss or belt to support his hernia. Therefore, the Board finds that a 10 percent disability rating, but no more, is warranted for the Veteran's post-operative recurrent right inguinal hernia. The Board has also considered referral for extra-schedular consideration. See Thun v. Peake, 22 Vet App 111 (2008). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected scar and hernia is inadequate. A comparison between the level of severity and symptomatology of the Veteran's symptoms with the established criteria found in the rating schedule for skin disorders and the rating schedule for digestive system shows that the rating criteria reasonably describe ratings for skin disorders and digestive disorders, but the Veteran simply does not exhibit those symptoms. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), there is no evidence in the medical records of an exceptional or unusual clinical picture. Further, the record does not show that the Veteran has required frequent hospitalizations for his service- connected disability. In addition, there is nothing in the record which suggests that the disability markedly impacted the Veteran's ability to work. Therefore, the Board finds that the criteria for submission for assignment of an extra- schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 10 percent for service-connected post-surgical right inguinal hernia scar is denied. Entitlement to a separate disability rating of 10 percent for service-connected post-surgical right inguinal hernia is granted, subject to the law and regulations applicable to the payment of monetary benefits. ___________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs