Citation Nr: 1007602 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 05-39 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals, status post left inguinal herniorrhaphy. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant; Appellant's wife ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1969, and from January 2003 to October 2003. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a November 2007 Board hearing before the undersigned in Washington, D.C. A hearing transcript is associated with the claims folder. After the hearing, the Board remanded the claim in a March 2008 decision for additional development. As discussed below, the development requested by the Board has been completed to the extent possible, and the claim is now appropriate for appellate review. FINDINGS OF FACT The competent and probative medical evidence does not show recurrence of a hernia, and although the Veteran's physicians agree that some nerve damage was incurred during the Veteran's 2003 left inguinal hernia repair, it does not rise to the level of a compensable disability evaluation for rating purposes. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for residuals, status post left inguinal herniorrhaphy, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.114, 4.124, 4.124a, Diagnostic Codes 7338, 8730 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). The Veteran's claim here arises from his disagreement with the initial evaluation following the grant of service connection. Judicial precedent holds that, once service connection is granted, the claim has been substantiated, additional notice is not required, and any defect in previous notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice, beyond that afforded in the context of the Veteran's initial claim for service connection, is needed under the VCAA. As to VA's duty to assist, the RO obtained service treatment records (STRs), treatment records from the Wilmington VA Medical Center (VAMC), and private treatment records. Further, the Veteran was afforded VA medical examinations in January 2006 and November 2006. As previously mentioned, in a March 2008 decision, the Board remanded the claim for further development. Specifically, the Board stated that VA should attempt to obtain the Veteran's Social Security Administration (SSA) records, as well as any records from Walter Reed Army Medical Center related to his left inguinal hernia repair in 2003. Additionally, the Board stated a VA examination was needed to obtain a medical opinion regarding whether any nerve damage resulted from the Veteran's hernia repair. Following this Board's remand, the Veteran's SSA records were obtained, as were his records from Walter Reed. Additionally, a VA examination was conducted in May 2009 that included an opinion regarding whether the Veteran suffered nerve damage as a result of the 2003 hernia repair. Thus, it appears that all development requested by this Board in its March 2008 remand has been completed to the extent possible, and no additional development is required. The Board finds that that no additional assistance is required to fulfill VA's duty to assist the appellant. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Rating A. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. Part 4 (2009). When a question arises as to which of two evaluations shall be assigned, 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. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In general, when 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). However, when the current appeal arose from the initially assigned rating, as is the case here, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran has been evaluated under Diagnostic Code (DC) 7338, which falls under the schedule of ratings for the digestive system, found in 38 C.F.R. § 4.114. Under DC 7338, which specifically addresses inguinal hernias, a 0 percent, or non-compensable, evaluation is assigned where the hernia is small, reducible, or without true hernia protrusion, or where it is not operated on but is remediable. A 10 percent evaluation is assigned where the hernia is postoperatively recurrent, readily reducible, and well supported by a truss or belt. A 30 percent evaluation is assigned where the hernia is small, postoperatively recurrent, or unoperated irremediable, not well supported by a truss, or not readily reducible. Finally, a 60 percent evaluation is assigned where the hernia is large, postoperatively recurrent, not well supported under ordinary conditions, and not readily reducible, and when considered inoperable. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis The Veteran was awarded service connection for residuals, status post left inguinal herniorrhaphy in the March 2005 rating decision on appeal. A 10 percent evaluation was assigned effective from October 7, 2003, the date of the Veteran's separation from active service. The Veteran contends that a higher initial evaluation is warranted in light of his ongoing residual pain. Specifically, in his May 2005 Notice of Disagreement, the Veteran states that two nerves were accidentally cut during the 2003 hernia repair, and he has subsequently had severe pain in the area where the nerves were damaged. The Board will begin by reviewing the medical evidence relating to the rating period on appeal to determine whether an increased rating is warranted. The Veteran's STRs show that in July 2003, he was pulling a refrigerator unit when he fell and felt a sharp pain in the left lower abdomen. He later noticed bulging in that same area. The doctor assessed a left inguinal hernia. The Veteran underwent a left direct inguinal hernia repair using the plug-and-patch method in August 2003 at Walter Reed Army Medical Center. Following separation from service, in February 2004, the Veteran sought treatment with Dr. M. E. L. for persistent post-surgical pain in the left groin. The doctor ordered no physical training for 3 months. Later that month, the Veteran went to the Wilmington VAMC for the first time. He reported progressive inguinal pain that extended to the left lumbosacral region since his August 2003 surgery. Pain was worse with coughing, bending over, and lifting. There was no evidence of herniation on examination. The doctor, a primary care physician, referred the Veteran for a surgical consultation. In March 2004, the VAMC surgeon noted left inguinal pain as well as low back pain radiating down the back of the left leg. On physical examination, the doctor noted a healed left inguinal incision and no trigger points. The doctor discussed the painful groin syndrome that sometimes occurs after hernia surgery, which may be relieved with NSAIDs or may require surgical exploration to determine whether there is nerve entrapment or a neuroma. The doctor prescribed pain medication and ordered lumbar x-rays. In April, the Veteran's primary care physician noted that the Veteran had decided against surgery and thus would likely have chronic pain associated with the hernia repair. The doctor referred the Veteran to the VAMC's pain management clinic, where he was seen in June. There, the Veteran stated he did not obtain relief from pain with Percocet and Naprosyn. He stated that since his 2003 surgery, whenever he coughed, sneezed, or lifted, he felt severe pain in the left groin. He found some relief in the fetal position, but the medications he had been prescribed provided no relief at all. The nurse practitioner also noted that the Veteran was having low back pain which was believed to be arthritis. The nurse practitioner assessed neuropathic left groin pain, secondary to surgical trauma, as well as chronic low back pain secondary to degenerative joint disease (after reviewing lumbar x-rays). She then gave the Veteran a Lidoderm patch to see if the damaged nerves would be quieted. Later that month, the Veteran reported that he did not notice any improvement in comfort with the Lidoderm patches and had stopped using them. However, his pain was relieved with morphine, so the nurse practitioner continued to prescribe the medication. She further stated that there was no need for ongoing follow-up in the pain clinic. In September 2004, the Veteran reported ongoing back and abdominal pain that kept him from sleeping. The pain was at a level of 9 out of 10 at worst, but currently at a level of 5 out of 10. In October 2004, the SSA made a Disability Determination, awarding Social Security Disability benefits to the Veteran for post-surgical neuropathy. In his SSA Pain Report, the Veteran wrote that he had continuous left side groin pain as a result of his hernia surgery, between 6 to 10 hours a day, and sometimes all day. The SSA had its own physician complete a Physical Disability Assessment, wherein the doctor wrote that the Veteran had severe pain in the groin from the site of the prior hernia repair down into the leg. Physical examination and x-rays were negative, and although treating physicians had been unable to determine the cause of the Veteran's pain, they all felt that it was related to his hernia surgery. An August 2005 VAMC treatment note indicates the Veteran continued to have intermittent severe abdominal pain, with severe and unexpected exacerbations that occurred 2 to 4 times per week on average, sometimes twice a day, lasting for about 45 minutes. The Veteran had not filled his pain medication since May 2005, and tried to use it as little as possible. In January 2006, the Veteran was afforded a VA examination. The Veteran reported severe pain upon palpation to the abdomen. The examiner observed a 3 inch left inguinal scar without induration, erythema, discharge, or deep fixation of the scar. There were normal bowel sounds. The examiner assessed postoperative left inguinal neuropathy, stating that the anterior cutaneous branch of the iliohypogastric nerve could be involved. In August 2006, during a psychiatric evaluation at the VAMC, the Veteran reported he had switched from morphine to tramadol that month to address his left groin pain, which kept him from sleeping. The Veteran was afforded another VA examination by a neurologist in November 2006. The Veteran complained of pain in the left lower abdomen/groin that never abated, even with narcotic pain medication. He also had pain in his low back on the left side. On physical examination, the Veteran cited pain as the reason for not walking on his toes or heels. Sensation to pinprick was intact, including the left groin area. Lower extremity deep tendon reflexes were absent. The examiner assessed pain behavior, possible neuralgia, peripheral neuropathy, and lumbar radiculopathy. Further, the examiner opined that it was more likely that lumbar radiculopathy was responsible for the Veteran's complaints of pain, given the radiation of pain through his leg to his foot. Generally, the examiner stated that pain following an inguinal hernia repair is often due to neuralgia, which occurs due to injury or entrapment of any of the named sensory nerves that innervate the groin, including the ilioinguinal, iliohypogastric, genital branch of the genitofemoral, and the lateral femoral nerves. She then went on to explain how injury to these nerves commonly occurs during hernia repair and possible treatment methods. In February 2007, Dr. M. A. N., a general surgeon, saw the Veteran in consultation for persistent left groin pain. The Veteran stated that the pain began 4 days after his hernia repair and had been constant since that time. Another surgeon recommended a nerve block injection, and as a last resort, mesh removal. The Veteran had taken intermittent morphine, and Lidoderm patches did not provide relief. On physical examination, there was no evidence for recurrent hernia. There was a well-healed surgical scar, and tenderness along the cord structures in the left groin. The doctor stated there was a 1 to 2 percent incidence of severe chronic debilitating pain after hernia repair. This pain may be related to injury to a nerve at the time of surgery, subsequent scarring of the mesh that includes the nerve, or an actual neuroma that forms related to the surgery. The typical algorithm involves visitation to a pain specialist and attempts at stopping the cycle of pain with injections of steroid and/or anesthetic at the site of the ilioinguinal nerve. The last recommendation would be for mesh removal. Dr. M. A. N. noted that the Veteran seemed to be comfortable taking his pain medication, but recommended that the Veteran see a pain specialist for nerve block injections. In May 2009, the Veteran was afforded a third VA examination. The examination was conducted by the January 2006 examiner. The examiner noted that he reviewed the claims file as well as the 2007 letter from Dr. M. A. N. The Veteran's pain was aggravated by touching the scarred area. The scar was 2 1/2 inches long and 1/8 inch wide. It was painful and sensitive to the touch. There was tenderness on palpation of the scar. There was no deep adherence to the underlying tissues. The scar color and texture was similar to the surrounding skin. The examiner assessed entrapment neuropathy involving the ilioinguinal and genitofemoral nerves. The neuralgias were related to the surgery and were the cause of the Veteran's postoperative pain. The pain was limiting the Veteran's ability to ambulate. Neuralgias can be prevented by meticulously avoiding manipulation of the nerves during dissection and creation of the hernia repair. The examiner noted that the Veteran retired in 2003. Based on the foregoing, the Board finds that the preponderance of the evidence is against an increased rating under DC 7338, which, as described above, addresses inguinal hernias. A 10 percent evaluation, which the Veteran is currently assigned, requires a postoperative recurrent hernia, readily reducible and well supported by a truss or belt. There is no medical evidence of a recurrent hernia after the 2003 repair, and thus, the Veteran does not even meet the criteria for a compensable evaluation under DC 7338. The Board also notes that the Veteran has chronic pain due to a neuralgia that resulted from the 2003 hernia repair. Noting that DC 7338, under which the Veteran's service- connected disability has been rated, does not contemplate neurological problems, the Board has considered a separate evaluation for nerve damage related to the left inguinal hernia repair. In that regard, DCs 8530, 8630, and 8730 under the schedule of ratings for neurological conditions, Diseases of the Peripheral Nerves, found in 38 C.F.R. § 4.124a, address injury to the ilioinguinal nerve. Under DC 8530, which addresses paralysis of the ilioinguinal nerve, a noncompensable rating is assigned for mild or moderate paralysis, and a 10 percent rating is assigned for severe to complete paralysis. Neuralgia, which is characterized usually by a dull and intermittent pain, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The regulations further provide that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree of paralysis. In this case, the VAMC nurse practitioner assessed neuropathic left groin pain, secondary to surgical trauma, in April 2004. The SSA awarded disability benefits on the basis of post-surgical neuropathy. The January 2006 VA examiner assessed postoperative left inguinal neuropathy, and later, in May 2009, neuralgias related to the hernia repair. Finally, both Dr. M. A. N. and the November 2006 VA examiner indicated that the Veteran's pain was related to nerve damage during the hernia repair. Based on these various assessments made regarding the etiology of the Veteran's pain, there is no evidence of nerve paralysis and no diagnosis of neuritis. Thus, the most appropriate diagnostic code for consideration seems to be DC 8730 for neuralgia. As stated above, neuralgia is to be rated on the same scale as paralysis with a maximum equal to moderate paralysis. In this case, mild and moderate paralyses are assigned a non-compensable, or 0 percent, rating. Given that the Veteran's neuralgia does not rise to the level of entitlement to a separate compensable rating, the Board finds that the evidence in this case does not warrant a separate evaluation under DC 8730. In addition to the foregoing, the Board has considered whether the Veteran's service-connected disability warrants an increased rating on an extra-schedular basis. The governing criteria for the award of an extra-schedular rating call for a finding that the case presents such an exceptional or unusual disability picture, with such related factors as marked inference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. In these instances, the RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extra-schedular evaluation commensurate with average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). In this case, frequent hospitalization has not been shown. Further, Veteran is retired and the May 2009 VA examiner noted that he had not missed work due to his disability. Moreover, the Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008). Thus, the evidence does not indicate that application of the regular schedular standards is rendered impracticable, and referral for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321 is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for residuals, status post left inguinal herniorrhaphy, is denied. ____________________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs