Citation Nr: 1115411 Decision Date: 04/20/11 Archive Date: 05/04/11 DOCKET NO. 09-29 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial compensable rating for post-operative residuals of a right inguinal herniorrhaphy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from September 1975 to September 1980. This appeal to the Board of Veterans' Appeals (Board) is from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted the Veteran's claim for service connection for post-operative residuals of a right inguinal herniorrhaphy and assigned an initial 0 percent (i.e., noncompensable) rating retroactively effective from February 22, 2007, the date of receipt of this claim. He appealed for a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals his initial rating, VA must consider whether to "stage" the rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). As support for his claim, the Veteran testified at a hearing at the RO in February 2011 before the undersigned Veterans Law Judge (VLJ) of the Board, also commonly referred to as a Travel Board hearing. During the hearing the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2010). The Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. REMAND The Veteran's right inguinal hernia disability is rated under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7338 (2010). Under this DC, a small inguinal hernia, reducible, or without true hernia protrusion, is rated as 0-percent disabling. A 0 percent rating also is assigned if it is not operated, but remediable. Postoperative recurrent inguinal hernia, readily reducible and well supported by a truss or belt, is rated as 10-percent disabling. Small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by a truss, or not readily reducible, is rated as 30-percent disabling. Whereas a large inguinal hernia, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable, is rated as 60-percent disabling. A Note to this DC 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 rated, and 10 percent, only, added for the second hernia, if the second hernia is of compensable degree. As brief history of this disability, the Veteran has intermittent right inguinal hernia pain during service. His service treatment records (STRs) show he resultantly underwent surgical repair in November 1979, specifically, an elective right inguinal herniorraphy. His September 1980 separation examination noted a scar from this operation, but otherwise remarked that the procedure had a "good result." When since provided VA compensation examinations in November 2007 and February 2009, which included consideration of August 2008 and March 2009 computerized tomography (CT) scans or ultrasounds, the examiners specifically determined there was no existing hernia. However, since the RO issued the Statement of the Case (SOC) in May 2009, an entire volume of VA outpatient treatment records have been added to the file from the local VA Medical Center (VAMC) in Indianapolis. These additional records are dated up to February 2011, so virtually to the present. During his recent February 2011 hearing before the Board, the Veteran made particular note of this additional, more recent, treatment at the local VAMC in Indianapolis as evidence that he continues to experience symptoms associated with his hernia repair like increasing pain and a swollen testicle, which he indicated he has had for about 3 years and is affecting a nerve in his leg, in turn causing him to limp when he walks. This, he said, even resulted in a referral to the urology clinic during March 2008 or March 2009 for further diagnostic evaluation. He also testified that his doctors at this VAMC have confirmed he still has a hernia, contrary to the VA compensation examiners findings. His sister provided supporting testimony, especially concerning his decreased mobility; she said he cannot move around, so cannot exercise to lose weight and help alleviate the problems he is having with his hernia. Since the case must be returned to the RO/AMC for other reasons (explained below), the RO/AMC must consider these most recent VA treatment records when subsequently readjudicating this claim and address them in a Supplemental SOC (SSOC). 38 C.F.R. §§ 19.31, 19.37 (2010). Indeed, these recent treatment records show the possible existence of a current hernia, as well as an added neurological impairment component. A January 2010 VA treatment record assessed the Veteran with persistent inguinal/scrotal pain and scrotal fullness and swelling, noting this "...is concerning for possible hernia." The treating medical resident went on to note a possible "neural component" of the hernia. The Veteran also had an endoscopy in November 2010, although the report of it does not reaffirm the hernia. Still, some of these recent treatment records indicate continuing complaints of right inguinal hernia pain - which, as mentioned, the Veteran and his sister reiterated in their hearing testimony that he continues to experience. And when asked, the Veteran also made clear that he believes his hernia is considerably worse than it was when last examined by VA for compensation purposes. See February 2011 personal hearing transcript, at page 6. He is competent, even as a layman, to make this proclamation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). And based on the Board's preliminary review of the additional records mentioned, his uncontradicted testimony of increased symptoms also appears to be credible. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In light of his lay testimony and medical findings suggesting a worsening of his hernia residuals, another VA compensation examination is needed to reassess the severity of this disability. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (wherein the Court held that, when a Veteran claims that a disability is worse than when originally rated (or last examined by VA), and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Schedule another VA compensation examination to reassess the severity of the Veteran's right inguinal hernia residuals. All necessary diagnostic testing, evaluation, studies and/or consultations should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings reported in detail. As well, it is absolutely imperative the examiner review the claims file for the pertinent medical and other history, including a complete copy of this remand. Concerning the right inguinal hernia, the examiner should report whether there is evidence of a recurrence and if so, whether the hernia is readily reducible or well supported by a truss or belt. Also comment on whether there is any limitation of motion or other function as a result of this disability. Furthermore, the examiner should discuss the severity of any neurological impairment that is associated with this disability. The examiner should comment, as well, on whether there is objective evidence of tender or painful scars, such as from the hernia surgery, and/or if there is limitation of any function caused by scarring. 2. Then readjudicate this claim in light of any additional evidence, including specifically considering all VA treatment records and other records added to the file since the SOC. This especially includes the additional treatment records that have been submitted from the local VAMC in Indianapolis. If the claim is not granted to the Veteran's satisfaction, send him an SSOC and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).