Citation Nr: 1122941 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 09-23 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating higher than 10 percent for diverticulum of the duodenum with hiatal hernia. 2. Entitlement to a compensable rating for recurrent right inguinal hernia with right ilioinguinal nerve neuralgia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from October 1952 to October 1972. This appeal to the Board of Veterans' Appeals (Board) is from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his June 2009 substantive appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Member (Veterans Law Judge) of the Board. This type of proceeding is often referred to as a Travel Board hearing. The RO scheduled his hearing for March 15, 2011 and sent him a letter in February 2011 in anticipation of it asking that he indicate whether he would be able to attend the proceeding. He responded that he would not. He has not asked to reschedule his hearing. Thus, the Board finds he has withdrawn his request for a Travel Board hearing. 38 C.F.R. § 20.704(e) (2010). The Board, however, since has advanced this appeal on the docket in June 2011 pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's diverticulum of the duodenum with hiatal hernia is manifested by regurgitation, pyrosis, substernal pain, and mild anemia. 2. His right inguinal hernia is status post five surgical procedures, but with no recurrence of a hernia for the past 15 years; however, he has associated right ilioinguinal nerve neuralgia that is ongoing, tenderness to palpation, and increasing pain ranging from a level of intensity of 3/10 to as much as 10/10 with movement. CONCLUSIONS OF LAW 1. The criteria are met for a higher 30 percent rating for the diverticulum of the duodenum with hiatal hernia. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.112-4.114, Diagnostic Code 7346 (2010). 2. The criteria also are met for a higher 10 percent rating for the recurrent right inguinal hernia. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.112-4.114, Diagnostic Code 7338 (2010). 3. The criteria are met, as well, for a separate 10 percent rating for the associated right ilioinguinal nerve neuralgia. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.123-4.124a, Diagnostic Code 8730 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court initially held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). The Veterans Court further held in Vazquez-Flores v. Peake that, for an increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate the claim, the medical or lay evidence must show a worsening or increase in severity of the disability and the effect that such worsening or increase has on the claimant's employment and daily life. On appeal, however, in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), the Federal Circuit vacated and remanded important aspects of the Veterans Court's holding in Vazquez-Flores, as well as a related case, Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Significantly, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific." Similarly, "while a Veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments." Vazquez, 2009 WL 2835434, at 10. It since has been held that, after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has had on employment, is found in an increased-rating claim, the appellant's burden to show prejudice, at the Court (CAVC) level, does not shift to VA unless notice is not provided at all. See Vazquez-Flores v. Shinseki, No. 05-0355, 2010 WL 4146124 (Vet. App. Oct. 22, 2010). In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in September 2008, prior to initially adjudicating his claims in October 2008, so in the preferred sequence. The letter informed him of the evidence required to substantiate his increased-rating claims and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also complied with Dingess by as well apprising him of the disability rating and effective date elements of his claims. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all relevant medical and other records that he identified. He was also examined for VA compensation purposes in October 2008. The examination report and medical and other evidence in the file provides the information needed to assess the severity of his disabilities, the determinative issues concerning his claims for higher ratings for these disabilities. And although that examination was about 21/2 years ago, there is sufficient evidence in the file upon which to increase the ratings for his disabilities without the need to have him reexamined. 38 C.F.R. §§ 3.327(a), 4.2. See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995); and Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). A new examination is not required by the mere passage of time - especially, as here, where the claims are at least partly being granted rather than denied. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). II. Whether a Rating higher than 10 percent is Warranted for the Diverticulum of the Duodenum with Hiatal Hernia In July 1974, the RO granted service connection for diverticulum of duodenum with hiatal hernia. The Veteran believes this disability is now considerably worse and, therefore, deserving of a higher rating. For the reasons and bases discussed below, the Board agrees and finds that a higher 30 percent rating is now more appropriate. Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in determining the present level of disability, the Board must consider whether to "stage" the rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. The relevant temporal focus for adjudicating the level of disability of an increased-rating claim is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. Id. See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113. Under DC 7346 for hiatal hernia, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms required for a 30 percent evaluation, but of lesser severity than is required for that evaluation. A 30 percent rating requires persistently-recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, all of which is productive of a considerable impairment of health. A 60 percent rating for hiatal hernia is warranted where there is pain, vomiting, material weight loss, and hemetemasis or melena with moderate anemia; or, other symptoms productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. Under DC 7346, "material" weight loss is a criterion for a higher disability rating. This term is not defined by the regulation; however, § 4.112, does define the term "substantial weight loss." Substantial weight loss means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. "Baseline weight" means the average weight for the two- year-period preceding onset of the disease. 38 C.F.R. § 4.112. Separate ratings for DCs 7301 to 7329 and 7331, 7342, and 7345 to 7348 will not be combined with each other. A single evaluation will be assigned under the code that represents the predominant disability picture. But, the rating must be elevated to the next higher rating where "the severity of the overall disability warrants such elevation." 38 C.F.R. § 4.114. To the extent that the diagnostic codes listed exclude those of the upper digestive tract (mouth, lips, tongue, esophagus) and lower digestive tract (anus and rectum), separately rated disabilities may be permissible so long as each disability is found to exhibit different symptoms. Applying these criteria to the facts of this case, the Board finds that the Veteran's gastroesophageal disability warrants a higher 30 percent rating. The evidence supporting this conclusion is the report of his October 2008 VA examination and the results of an upper endoscopy that same month at a private facility. During the October 2008 VA examination, the Veteran reported experiencing acid reflux regurgitation and heartburn especially at night. He also reported taking omeprazole twice a day and avoiding citrus juices and spices. He reported, as well, that if he fails to take his medication, he gets severe acid regurgitation and heartburn. The examiner observed the Veteran's abdomen was soft and nontender. There was no organ enlargement or masses felt on palpation. Laboratory tests showed mild anemia. The October 2008 upper endoscopy found a large hiatal hernia, possibly predisposing the Veteran to develop Cameroon ulcerations and subsequent chronic iron deficiency anemia. The Veteran's disability warrants a higher 30 percent rating because his condition results in persistently-recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal pain, all of which cause considerable impairment of his health. The October 2008 VA examination confirmed he had regurgitation, pyrosis, and substernal pain, which were exacerbated by spicy or acidic foods and only mitigated by daily medication. This examination also found mild anemia. Despite medication management, the October 2008 upper endoscopy still found that the Veteran had a large hiatal hernia and possible Cameroon ulcerations that were causing (or predisposing him to) chronic iron deficiency anemia. So based on these objective medical findings, he has what amounts to epigastric distress resulting in a considerable impairment of his health - in turn entitling him to the higher 30 percent rating. However, as he does not also have vomiting, material weight loss, and hemetemasis or melena with moderate anemia, his condition is not severe enough to warrant the even higher 60 percent rating. The joining of criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met. See Tatum v. Shinseki, 23 Vet. App. 152 (2009). Since the Veteran's condition has never been more than 30-percent disabling since one year prior to filing his increased-rating claim, there is no basis to "stage" the rating under Hart. III. Whether a Compensable Rating is Warranted for the Recurrent Right Inguinal Hernia with Right Ilioinguinal Nerve Neuralgia Also in July 1974, the RO granted service connection for a recurrent right inguinal hernia. The Veteran was granted temporary 100 percent ratings for hernia repair surgery in August 1974 and November 1995. In an August 1996 rating decision this disability was recharacterized to also include right ilioinguinal nerve neuralgia, though not accompanied by the granting of additional compensation. The Veteran, however, believes he has additional, more severe, disability in comparison to when this disability was service connected many years ago. And for the reasons and bases discussed below, the Board agrees and finds that his condition warrants additional compensation - indeed, not only higher but separate 10 percent ratings. This disability has been rated exclusively under Diagnostic Code 7338 for inguinal hernia. Under DC 7338, a 10 percent rating is warranted for a hernia that is postoperative recurrent, readily reducible and well supported by truss or belt. A higher 30 percent rating is warranted for a small hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. An even higher 60 percent rating is warranted for a large hernia, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. The Veteran's ilioinguinal neuralgia also has been service connected as part and parcel of the inguinal hernia disability; however, since it was deemed to have been noncompensably disabling, it was not rated separately. Ilioinguinal neuralgia is rated under DC 8730. Under DC 8530 for paralysis of the ilioinguinal nerve, a noncompensable rating is warranted for mild or moderate paralysis, and a 10 percent rating is warranted for severe to complete paralysis. A maximum 10 percent disability rating is assigned for neuritis and neuralgia of the ilioinguinal nerve analogously when these disorders cause manifestations analogous to severe to complete paralysis. See 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Codes 8530, 8630, 8730. Applying these criteria to the facts of this case, the Board finds that the Veteran's disability warrants separate 10 percent ratings. The evidence supporting this conclusion is the report of his October 2008 VA examination. During that examination, he reported five hernia repairs since the 1950s. He said his most recent surgery had been during the mid-1990s, with no recurrence of the right inguinal hernia since. But he added that he nonetheless has significant pain, which is an aching 3/10 pain at rest but that gets intermittently more intense on standing or walking to a level of 10/10 at times. The examiner observed the Veteran's abdomen was soft and nontender. His left inguinal area was normal. The right inguinal area was tender to palpation. The Veteran reported taking Tramadol for groin pain. The right inguinal area also showed multiple well-healed surgical scars. The scars were sensitive, but there was no evidence of neuroma or keloid formation. The Veteran's condition warrants a higher 10 percent rating under DC 7338 because his right inguinal hernia is postoperative and recurrent. He has had a total of five surgeries for his right inguinal hernia - which, itself, is indication of recurrence, although the October 2008 VA examiner did not find or observe any hernia then present during his evaluation of the Veteran to suggest yet another recurrence. Still, there have been several recurrences in the past necessitating the several surgeries mentioned, so his condition warrants a higher 10 percent rating. The Veteran's condition also warrants a separate 10 percent rating under DC 8730, however, because his right inguinal area is tender to palpation and increasingly painful from a level of 3/10 to 10/10 on movement. The tenderness appreciated by the October 2008 VA examiner in addition to the Veteran's subjective complaints of pain and daily treatment with pain medication are sufficient reason to assign an additional 10 percent rating for severe neuralgia of the ilioinguinal nerve. These 10-percent ratings represent the maximum level of his disability since one year prior to the filing of his claim for an increased rating. So the Board cannot "stage" these ratings under Hart. IV. Extra-schedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director of Compensation and Pension Service is authorized to approve an extra-schedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2008). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Rating Schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the Board finds that the schedular ratings of 30 percent for the Veteran's diverticulum of the duodenum with hiatal hernia, 10 percent for a recurrent right inguinal hernia, and 10 percent for ilioinguinal neuralgia contemplates the extent and severity of his symptoms, referral to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extra-schedular evaluation is not required. In other words, there is no evidence this disability has caused marked interference with his employment - meaning above and beyond that contemplated by his schedular ratings, or required frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. See Thun. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating, itself, is recognition that industrial capabilities are impaired. So the Board does not have to refer this case for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A higher 30 percent rating is granted for the diverticulum of the duodenum with hiatal hernia, subject to the statutes and regulations governing the payment of VA compensation. A higher 10 percent rating also is granted for the recurrent right inguinal hernia, subject to the statutes and regulations governing the payment of VA compensation. A separate 10 percent rating is granted, as well, for the right ilioinguinal nerve neuralgia, also subject to the statutes and regulations governing the payment of VA compensation ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs