Citation Nr: 1031247 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 04-05 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial evaluation for status post right hernia repair, including scarring, in excess of 10 percent. 2. Entitlement to an initial compensable rating for status post left hernia repair. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran had active service from October 1983 to October 1986. This matter comes to the Board of Veterans' Appeals (Board) from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which in pertinent part granted service connection for status post right hernia repair and for status post left hernia repair, and assigned initial noncompensable disability ratings for each. These remain the Veteran's only service-connected disabilities. Also, a compensable disability rating of 10 percent for multiple noncompensable service-connected disabilities which clearly interfere with employability was denied. The Veteran appealed these decisions. The case was remanded in August 2006 to ensure due process by compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and to afford the Veteran a comprehensive up-to-date rating examination. Subsequently, a June 2007 rating decision granted a 10 percent rating for tender and painful post-operative right inguinal herniorrhaphy scarring but confirmed and continued an initial noncompensable rating for status post left hernia repair. The assignment of a 10 percent rating for the right inguinal herniorrhaphy with scarring now precludes a grant of a 10 percent rating under 38 C.F.R. § 3.324 inasmusch as that regulation requires that there be no compensable service-connected disorders. So, that issue is now moot and will not be addressed. The case was again remanded by the Board in October 2007 to clarify whether the Veteran desired an informal conference before a Decision Review Officer at the RO or whether he desires a formal hearing at the RO, and to afford the Veteran a VA rating examination. A December 2009 Report of Contact notes that the Veteran was contacted to determine whether he desired to appear before a DRO. During the course of the telephonic conversation it was determined that the AMC's June 2007 rating decision was never promulgated. The Veteran was surprised when he learned that he had been granted a 10 percent evaluation and stated that he had never received anything from VA. He further stated that the 10 percent rating for his right inguinal hernia would satisfy his appeal for this issue. Since he did not have a fax machine he was informed that he could provide such a withdrawal in writing at any time. However, the Veteran has never formally, in writing, withdrawn any claim. Accordingly, the issues remain as stated on the Title page. The Veteran has submitted additional evidence in the form of private clinical records from St. Mary's Medical Park, and he waived initial RO review of such evidence in writing. Thus, the Board will review the evidence in deciding the instant matter on the merits. See 38 C.F.R. § 20.1304(c) (2009). The case has now been returned for appellate consideration. FINDINGS OF FACT 1. Following recurrences of a right inguinal hernia in 2004 and 2007, each of which was surgically repaired, there has been no recurrence of the hernia and, so, there is no reducibility or need for a belt or truss for support and the resultant scarring is well healed, not disfiguring, and not productive of functional impairment. 2. Following surgical repair of a left inguinal hernia in 1986 there has been no recurrence of the hernia and, so, there is no reducibility or need for a belt or truss for support and the resultant scarring is well healed, non-tender, not disfiguring, and not productive of functional impairment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation for status post right hernia repair, including scarring, in excess of 10 percent are not met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b) (1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.114, Diagnostic Codes 7338 and 7804 (2009). 2. The criteria for an initial compensable rating for status post left hernia repair are not met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.114, Diagnostic Codes 7338 and 7804 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). In part, the case was remanded by the Board in August 2006 to afford the Veteran with VCAA compliance. However, the appeal arises from the Veteran's disagreement with the initial rating assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that VA satisfied its duties to notify the Veteran in this case. As to VA's duty to assist, VA has associated with the claims file the Veteran's service treatment records and VA treatment records, and afforded him examinations with respect to the claims. There is no evidence that there has been a change in the service- connected disabilities since the last examination. Accordingly, a remand for a more recent examination is not necessary. 38 C.F.R. § 3.327(a) (2009). The reports of the VA examination conducted in this case show that the examinations were thorough and supported by the outpatient treatment records. Thus, the examinations overall are adequate bases upon which to base a decision. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). Also, additional private clinical records from a private physician and from St. Mary's Medical Park have been received. In part, the case was remanded by the Board in October 2007 to determine whether the Veteran desired an informal conference with a Decision Review Officer (DRO) at the RO or a formal RO hearing. In October 2007 the RO wrote the Veteran and inquired as to this very matter. However, the Veteran never responded. Accordingly, any request for either an informal conference with a DRO or for a formal RO hearing is deemed to be withdrawn. The Board finds these actions have satisfied VA's duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background On VA rating examination in June 2003 it was noted that the Veteran had had a right inguinal herniorrhaphy in 1984 and in 1986 he had a left inguinal herniorrhaphy at which time there was further exploration at the site of the earlier right inguinal hernia. He had had a postservice umbilical herniorrhaphy in 2002. On physical examination there was no evidence of hernia recurrence. In the Veteran's February 2004 VA Form 9 he reported that he continued to have pain and soreness as well as swelling on his 3 inch surgical scar. He also reported that he wore a "waist belt" at work. A May 2004 VA outpatient treatment (VAOPT) record reflects that a VA physician signed a work release stating that the Veteran was to do no lifting of objects greater than 20 lbs. as well as no prolonged standing until July 5, 2004. Private clinical records of Dr. G. L. H. reflect treatment from 2002 to 2007 for the Veteran's right inguinal hernia and an umbilical hernia, and contain the operative reports of the Veteran's umbilical hernia repair in 2002, right inguinal hernia surgery in 2004 and in 2007. VAOPT records in July 2004 reflect that the Veteran had a recurrence of the right inguinal hernia. The Veteran was hospitalized for a recurrence of the right inguinal hernia in August 2004 at the St. Mary's Hospital and Health Center and underwent a revision of the right inguinal herniorrhaphy. On VA examination in December 2006 the Veteran's claim file was apparently not available for review by the examiner. It was noted that the Veteran had been employed on a full-time basis as a custodian for the past 14 years and had not lost time from work in the last 12 months. He walked daily and lifted weights. At the time of the examination, he had no inguinal symptoms except that he reported having pain in the post-operative right inguinal herniorrhaphy scar but not in the contra-lateral surgical scar. On examination, the Veteran ambulated with a normal gait. There were two scars in the right lower abdominal quadrant. One scar measured 9 centimeters (cms.) by 1 cm. and the other measured 7 cms. by 0.5 cms. There was tenderness of both of the scars but sensation in the scars was normal and they were pink and smooth. There was no ulceration or skin breakdown and no adherence to underlying tissue. Disfigurement from the first scar was minimal and there was no disfigurement due to the second scar. Neither scar caused any functional limitation. Each scar involved less than 5 percent of the total body surface area and did not involve any exposed body surface area. There was a 7 cm. by 0.5 cm. faded scar in the left lower abdominal quadrant. There was no tenderness of the scar and sensation in the scar was normal. It was faded in color and smooth. There was no ulceration or skin breakdown and no adherence to underlying tissue or disfigurement. The scar caused no functional limitation. The scar involved less than 5 percent of the total body surface area and did not involve any exposed body surface area. The diagnoses were a recurrent right inguinal hernia with surgical repairs in 1984 and 2004 with residual tender surgical scars and subjective reports of swelling, although no scar swelling was found on examination, and a left inguinal hernia repair in 1986 with no residuals other than a well-healed and faded post-operative scar. In an addendum the day following the examination, it was reported that the Veteran denied the use of any assistive device or therapeutic belt worn at work. The hernia scar did not prevent him from performing his physical occupation as a custodian. He denied missing any significant time from work as a custodian in the past 14 years due to his hernia condition or scar. He was fully capable of performing his current physically demanding occupation which required moving light furniture to clean floors, lifting wastebaskets to empty trash, as well as mopping and vacuuming floors. No occupational limitations were identified related to his hernia scar or hernia condition. In an additional addendum, in March 2007, it was reported that based on a review of the claim file, there was no change in the previous examination report. It was also noted that a statement regarding the Veteran's wearing of a waist belt "was made prior to the most recent hernia surgery in August" and that there was no reported current use of a "brace." Records from the St. Mary's Medical Park show that a July 2007 discharge summary reflects that the Veteran had had a lot of groin pain after lifting on the job and was found to have a recurrence of a right inguinal hernia. Previously placed mesh was surgically removed and replaced with a Prolene hernia system. On VA examination in September 2008 the Veteran's claim file was reviewed. The Veteran reported having had a right inguinal hernia repair in 1984, a left inguinal hernia repair in 1986 with exploration of the right inguinal hernia site, and a 2002 umbilical hernia repair. A July 2004 pelvic CT revealed a small, 3 by 1.5 cms. right inguinal hernia with no complications. A July 2004 ultrasound revealed a small amount of hypoechoic tissue at the superior aspect of the right inguinal canal with Valsalva maneuver but there was no motion to suggest peristaliss. During Valsalva maneuver the area measured 2.4 by 1.8 cms. but it was not visible in the absence of performing Valsalva's maneuver. He had had a revision of the right inguinal hernia repair in August 2004. It was also noted that since the Veteran's last rating examination he had had another revision, in July 2007, of the recurrent right inguinal hernia and this had been an exploration of the right groin area with removal of mesh and repair of a recurrent right inguinal hernia with Prolene hernia system. The Veteran reported having continued pain in the right groin, especially on moderate lifting of objects. It was noted that an ultrasound had revealed a hypoechoic structure which appeared with Valsalva's maneuver but there had been no evidence of herniated bowel contents. The Veteran complained of some redness and soreness that occurred episodically and was associated with pain. He had no symptoms as to his left inguinal hernia. When he had right groin pain he used Alleve, usually about twice a week and this helped a little. He wore a hernia waist belt when he had to do lifting at work and he wore it for at least part of every work day, and had been doing this since his July 2007 revision of the right inguinal hernia. It sometimes helped alleviate the aggravation caused by lifting. Prior to this, he had used a waist belt on the job since 1993 but had stopped in 1996 when he was told by his employer that it was not helpful. He had no history of neoplasm. It was noted that the Veteran's left inguinal hernia repair had also involved a mesh but there had been no evidence of a recurrence of the left inguinal hernia since the initial repair. On physical examination there no right inguinal hernia was palpable and there was no redness, erythema or masses. There was mild to moderate inguinal tenderness, bilaterally, greater on the right side than the left but no palpable hernia or masses. He was very obese and there was prominent pelvic adipose tissue which distorted the scrotum, bilaterally. All of his surgical scars were well healed with no pain or specific scar tenderness and no adherence to underlying tissue. There was no history of ulceration or breakdown of the scars and there was no disfigurement or functional limitations. There was mildly erythematous coloration. The right suprapubic scar was 7 by 1 cms.; there was another right suprapubic scar which was 4 by 0.3 cms.; and there was a left suprapubic scar which was 3 by 0.1 cms. The assessment was a right inguinal hernia, and it was noted that no surgical intervention was needed but he should receive follow- up with his primary care source for further evaluation of the right groin pain on as needed basis. It was noted that he was employed on a full-time basis as a custodian for the last 10 to 20 years. In the last 12 month period he had loss less than 1 week of work due to self-limited illnesses. It was further noted that the Veteran had had persistent hernia site pain and tenderness since his recent 2007 surgery but there was no evidence of inguinal hernia recurrence. There was also no evidence of recurrence of the left inguinal hernia since the original repair but the Veteran had persistent mild hernia site tenderness. With respect to traveling, feeding, bathing, dressing, toileting, and grooming the Veteran had no impairment. He had mild impairment with respect to shopping and mild to moderate impairment performing chores. He had moderate impairment in performing exercises and moderate to severe impairment in performing sports. It was further noted that the matter of whether the hernias were reducible was not applicable inasmuch as there was no evidence of hernias at present. Likewise, as to whether the inguinal hernias were well supported by a truss or belt, this question was also inapplicable inasmuch as there was no evidence of hernias, although the Veteran found that a waist belt helped with respect to his persistent hernia site pain upon lifting. Rating Principles Service-connected disorders are rated by comparing signs and symptoms with criteria in separate diagnostic codes which identify various disabilities listed in VA's Schedule for Rating Disabilities, based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Disabilities are viewed historically and examination reports are interpreted in light of the history, reconciling the report into a consistent picture to accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2. A higher rating is assigned if a disorder more nearly approximates the criteria therefore but not all disorders will show all the findings specified for a particular disability rating, especially with the more fully described grades of disabilities but coordination of ratings with functional impairment is required. 38 C.F.R. §§ 4.7, 4.21. The evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2009). Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings). Under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7338, an inguinal hernia warrants a noncompensable disability rating when not operated upon, but remediable or if there is a hernia which is small, reducible, or without true hernia protrusion. If there is a recurrent postoperative inguinal hernia which is readily reducible and well supported by truss or belt, a 10 percent rating is warranted. If there is a recurrent postoperative inguinal hernia which is small or unoperated and irremediable, not well supported by a truss or not readily reducible, a 30 percent rating is warranted. If there is a large postoperative recurrent inguinal hernia which is not well supported under ordinary circumstances and not readily reducible, when considered inoperable, a 60 percent rating is warranted. A note to DC 7338 provides that 10 percent is to be added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. The criteria for evaluating disabilities of the skin, to include scars, were changed, effective August 30, 2002. 67 Fed. Reg. 49,590 - 49,599 (2002) codified at 38 C.F.R. § 4.118). Generally, where the law or regulation changes the most favorable version applies unless otherwise allowed by law. So, if the amended regulations do not include a provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded, notwithstanding the holding in Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (overruled by the Federal Circuit - in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003)). 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. See, too, VAOPGCPREC 11-97 (Mar. 25, 1997); VAOGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 7-2003 (Nov. 19, 2003). Here, the initial claim for service connection for inguinal hernias was filed in April 2003, after the revision of the criteria for rating scars. So, only the revised rating criteria apply in this case. The Veteran's service-connected skin disorders do not encompass disfiguring scars of the head, face or neck or burn scars. So, the new rating criteria for disfiguring or burn scars are not for application. Under the new 38 C.F.R. § 4.118 DC 7802 scars, other than head, face, or neck, that are superficial and that do not cause limited motion and involving an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent rating. Under DC 7803 a 10 percent rating is the only and maximum rating for scars which are superficial and unstable. Under DC 7804 a 10 percent rating is the only and maximum rating for scars which are superficial and painful on examination. Under the new DC 7805 other scars (not covered in DCs 7800 through 7804) are to be rated on the basis of limitation of function of the affected part. In rating scars under the new rating criteria a deep scar is one associated with underlying soft tissue damage. A superficial scar is one not associated with underlying soft tissue damage. In Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Court held that where the symptomatology of a scar is separate and distinct, a separate rating may be assigned for the scar. "[C]onditions are to be rated separately unless they constitute the 'same disability' or the 'same manifestation' under 38 C.F.R. § 4.14 [but] the critical element is that none of the symptomatology for any one of these [] conditions is duplicative of or overlapping with the symptomatology of the other [] conditions." Esteban, 6 Vet. App. at 261-62 (where 10percent ratings were assigned for facial muscle injury interfering with mastication, disfiguring scar, and tender and painful scar). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Analysis Initially, the Board notes that in the October 2007 remand clarification was requested as to the effective date of the grant of the initial 10 percent rating for status post right hernia repair with scarring. As to this, the June 2007 rating decision is now on file and shows that the effective date was April 15, 2003, date of receipt of the initial claim for service connection. Also, a December 2009 rating decision reflects that the Veteran was granted a temporary total rating under 38 C.F.R. § 4.30 for his right inguinal hernia, effective August 4, 2002, and that a 10 percent schedular rating was resumed, under 38 C.F.R. § 4.118, Diagnostic Code 7804, effective October 1, 2004. Initial Rating in Excess of 10 percent for status post right hernia repair, including scarring With respect to any potential disfigurement from the inguinal scarring, the evidence shows that the area of involvement is one which is not visible when the Veteran is clothed. Specifically, it does not involve the head, face or neck. Further, the recent VA examination found no more than some tenderness at the surgical site but no actual pain or tenderness of surgical scarring. The scarring is shown to be essentially asymptomatic and not productive of any significant functional limitations. Moreover, no examination during this appeal has found that there is any loss of underlying tissue. Rather, the evidence shows that the Veteran had subcutaneous tissue removed but none of this tissue was muscle tissue. Accordingly, the assignment of a disability evaluation on the basis of a symptomatic or disfiguring scar, injury of the abdominal muscle, or putative neurologic impairment is not appropriate. Also, the Veteran does not now have a recurrence of the right inguinal hernia and, so, does not require support by use of a truss or belt. His report of using a belt and of it providing some help is not sufficient to warrant a separate 10 percent rating under DC 7338 because, as stated, there is no actual recurrence of the right inguinal hernia nor any significant residual limitation of function. However, the Veteran has continued to have tenderness of the scarring which warrants no more than a 10 percent rating under the new DC 7804. Accordingly, the Board concludes that the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation higher than 10 percent for the service-connected disorder at any time during the time frame which is relevant to this appeal. Hart, supra. In other words, the Veteran's right inguinal hernia with scarring has been no more than 10 percent disabling during the relevant time period, so the rating cannot be "staged" because the 10 percent rating is the greatest level of functional impairment during this time period. Initial compensable rating for status post left hernia repair The Veteran has not had a recurrence of the left inguinal hernia since the initial repair in 1986. Further, there is no evidence that the residual surgical scarring has ever been symptomatic, and this includes the absence of evidence at any time that the resultant surgical scar is tender. The Veteran has used a waist belt but the evidence shows that this was for his service-connected right inguinal hernia and not the left inguinal hernia. Indeed, as the clinical evidence undisputedly establishes there has been absolutely no recurrence of the left inguinal hernia, it logically follows that a truss is not required. Moreover, none of the VA examination reports mentions any history of the Veteran ever having worn a truss, and he did not wear a truss when examined on any of those occasions. Lastly, because there has been no recurrence of the left inguinal hernia nor any symptomatic residuals of the left inguinal hernia repair, the left inguinal hernia surgical residuals are not compensable and, so, 10 percent may not be added to the evaluation assigned to the residuals of the right inguinal hernia repair pursuant to the note to Diagnostic Code 7338. Accordingly, the Board must conclude that a rating in excess of 10 percent is not warranted for the right inguinal hernia repair at any time during the appeal (other than the 100 percent temporary total rating already assigned) and that a compensable evaluation is not warranted for the left inguinal hernia repair at any time during the appeal because the preponderance of the evidence is unfavorable - so the benefit-of-the-doubt rule does not apply. 38 C.F.R. § 4.3. Extraschedular Consideration Extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is addressed when either raised by the claimant or the evidence, and requires a three-step analysis. First, is whether the schedular criteria are adequate and, if they are, no extraschedular referral is required. Second, if inadequate, determine whether there is an exceptional disability picture considering such related factors as marked interference with employment (but not marked interference obtaining or retaining employment) or frequent periods of hospitalization. Third, if the rating criteria are inadequate and the related factors are present, the case must be referred for a determination of whether an extraschedular rating should be assigned. Thun v. Peak, 111, 115-116 (2008) (citing VA Gen. Coun. Prec. 6-1996, para. 7, and Fisher v. Principi, 4 Vet. App. 57, 60 (1993)) aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). Here, the disability pictures are not shown to be incapable of accurate evaluation with the use of the schedular rating criteria. Moreover, the evidence shows that there has not been any significant adverse impact of the service-connected disabilities at issue upon the Veteran's employment, much less marked interference. Also, the disabilities are not so exceptional or unusual to render impractical the application of the regular schedular criteria. There is no evidence of frequent periods of hospitalization due solely to the service-connected disorders at issue. Thus, the disability pictures are contemplated by the Rating Schedule, and the assigned schedular evaluations are adequate. For this reason, the Board finds no basis to refer this case for consideration of extraschedular ratings. So, the criteria for submission for consideration of an extra-schedular rating are not met. Thun, Id. ORDER An initial rating in excess of 10 percent for status post right hernia repair, including scarring, is denied. An initial compensable rating for status post left hernia repair is denied. ____________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs