Citation Nr: 1237452 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-19 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for right ilio-inguinal nerve entrapment. 2. Entitlement to an effective date earlier than April 25, 2005 for the award of service connection for a right inguinal hernia repair scar. 3. Entitlement to service connection for a pulmonary disability (originally claimed as scar tissue of the lungs). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service in the United States Navy from September 1972 to September 1975 and from May 1976 to March 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal, in part, from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By that rating action, the RO, in part, granted service connection for right ilio-inguinal nerve entrapment; an initial noncompensable evaluation was assigned, effective May 3, 2007--the date of a private treatment records showing the existence of this condition and its relationship to a service-connected disability. The Veteran appealed the RO's assignment of an initial noncompensable disability rating to the above-cited disability to the Board. By an April 2008 rating action, the RO assigned an initial 10 percent disability rating to the service-connected right ilio-inguinal nerve entrapment, effective May 3, 2007. Since the RO did not assign the maximum disability rating possible, an appeal for a higher initial evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal also stems from September 2009 and April 2010 rating actions from the above-cited RO. By these rating actions, the RO denied service connection for a lung disability (originally claimed as scars tissue of the lungs) and an effective date earlier than April 25, 2005 for the award of service connection for a right inguinal hernia repair scar, respectively. The Veteran appealed both of these determinations to the Board. Regarding the claim for service connection for a pulmonary disability (originally claimed as scar tissue of the lungs), the Board notes that this issue was addressed by the RO in a June 2010 Statement of the Case. The Board has accepted a handwritten letter from the Veteran, wherein he disagreed with the RO's continued denial of this claim and received by the RO in September 2010, in lieu of a Substantive Appeal on this issue. In January 2010, the Veteran canceled his hearing before a Veterans Law Judge, which was to be scheduled at the Roanoke, Virginia RO. Accordingly, the Veteran's request for a hearing is considered withdrawn. 38 C.F.R. § 20.702 (2011). The issue of entitlement to an effective date earlier than April 25, 2005 for the assignment of a 10 percent disability rating assigned to the right inguinal hernia repair scar has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a pulmonary disability (originally claimed as scar tissue of the lungs) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is currently receiving the maximum 10 percent disability rating for his right ilio-inguinal nerve entrapment associated with status-post right inguinal hernia repair . His disorder is primarily manifested by pain and tingling over the right inguinal hernia repair scar site. 2. By a September 2005 rating action, the RO granted service connection for a right inguinal hernia repair scar; an initial 10 percent disability rating was assigned, effective April 25, 2005---the date VA received the Veteran's initial claim for compensation for this disability. In a letter issued that same month, the RO informed the Veteran of its decision, along with his appellate rights. He did not appeal the effective date of April 25, 2005 assigned to the award of service connection for a right inguinal hernia repair scar within the prescribed appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right ilio-inguinal nerve entrapment associated with status-post right inguinal hernia repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.124, 4.124a, Diagnostic Code 8630 (2011). 2. The Veteran's claim for an effective date prior to April 25, 2005 for the award of service connection for aright inguinal hernia repair scar must be dismissed. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §3.400 (2011); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Introductory Matters The Board has reviewed all the evidence in the Veteran's claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files show, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify a claimant of the information and evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011). Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c) (2011). The claim for an initial disability rating in excess of 10 percent for right ilio-inguinal nerve entrapment arose from the Veteran's disagreement with the RO's assignment of an initial noncompensable evaluation [which was later increased to 10 percent] following the RO's grant of service connection for this disability in the appealed August 2007 rating action. Courts have held that 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). Therefore, no further notice is needed under the VCAA with respect to this claim. Concerning the Veteran's earlier effective date claim, the Board finds that no further action is necessary pursuant to the VCAA prior to consideration of the issue addressed in this decision. In a January 2010 letter, the RO provided the Veteran with VCAA notice on this earlier effective claim. However, and as set forth in more detail below, the facts in this case are not in dispute and the Veteran's appeal must be dismissed as a matter of law. Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). As to VA's duty to assist with his earlier effective date and initial evaluation claims decided in the decision below, VA and private examination and treatment records and statements of the Veteran have been associated with the claims files. The Veteran was afforded a VA QTC examination in conjunction with his initial evaluation claim in November 2008. A copy of the November 2008 report is contained in the claims files. The Board finds that the November 2008 VA QTC examination to be more than adequate in rating his right ilio-inguinal nerve entrapment. The examining physician described this disability and conducted a complete physical examination. The examination provided adequate basis for rating the Veteran's disorder under the appropriate Diagnostic Code (i.e., Diagnostic Code 8630). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the initial evaluation claim on appeal has been met. 38 C.F.R. § 3.159(c) (4). Further, there is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected right ilio-inguinal nerve entrapment since he was last examined in November 2008. See 38 C.F.R. § 3.327(a) (2011). Regarding the Veteran's earlier effective date claim, VA did not obtain any additional evidence, such as a VA examination, in connection with this claim (versus the initial evaluation claim discussed above); however, such was not necessary. Specifically, oftentimes the evidence necessary to determine whether an earlier effective date is warranted is already in the claims file. That is the situation with this case. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). III. Merits Analysis (i) Initial Evaluation Claim Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2 (2011), and to resolve any doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3 (2011). 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. 38 C.F.R. § 4.7 (2011). 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). In cases where the original rating assigned is appealed, such as in this case, consideration must be given to whether the Veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks an initial disability rating in excess of in excess of 10 percent for right ilio-inguinal nerve entrapment. The RO has assigned the Veteran's right ilio-inguinal nerve entrapment a 10 percent disability rating under Diagnostic Code 8630, the Diagnostic Code used to evaluate neuritis of the ilio-inguinal nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8630. Under this code, a maximum 10 percent rating is warranted for severe to complete paralysis of the ilio-inguinal nerve. See 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8630. The Veteran is currently receiving the maximum schedular evaluation for neuralgia of the ilio-inguinal nerve and there is no showing that the disorder is more than severe or that the rating criteria fails to adequately compensate the Veteran for the disorder. The Board recognizes that during a November 2008 VA QTC examination, the Veteran reported having had pain in the groin area of nerve entrapment. There was, however, no tingling, numbness, abnormal sensation, weakness or paralysis of the affected parts. The Veteran's primary complaints were pain and tingling over the right groin scar site. The Board notes that it is not necessary at this juncture to address and evaluate the residual scar because the Veteran has been awarded service connection for a residual scar of right inguinal hernia repair and a 10 percent disability rating has been assigned. The Veteran has not appealed the rating assigned to his hernia scar and the issue is not in appellate status. The Board has carefully reviewed the rating schedule and finds no other diagnostic code that would provide a basis to grant a higher initial evaluation for his right ilio-inguinal nerve entrapment for any period. For these reasons, the Board finds that the preponderance of the evidence of record is against the appeal for a higher initial disability rating beyond 10 percent for this disability and the appeal must be denied. The Board further notes that there is no basis for assigning staged ratings. See Fenderson. As the Veteran has been assigned the maximum 10 percent disability rating for his service-connected right ilio-inguinal nerve entrapment, the Board will address whether referral for an extraschedular rating is warranted. While the Board does not have authority to grant an extraschedular rating in the first instance, it does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1)(2011). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria in Diagnostic Code 8630 reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected right ilio-inguinal nerve entrapment. The Veteran's signs and symptoms are contemplated in the applicable rating criteria. In fact, and as noted above, the Veteran's symptoms primarily revolve around pain and tingling over the right groin scar, a separate service-connected disability that is not the subject of this appeal. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). (ii) Earlier Effective Date Claim The Veteran seeks an effective date earlier than April 25, 2005 for the award of service connection for right inguinal hernia scar. The effective date of an award of benefits based on an original claim, such as here, is either (1) the date of receipt of the claim or (2) the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2011). A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2011). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2011). In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. After a review of the evidence of record, the Board finds that the Veteran's earlier effective date claim must be dismissed. The facts in this case are not in dispute. By a September 2005 rating action, the RO granted service connection for a right inguinal hernia repair scar; an initial 10 percent disability rating was assigned, effective April 25, 2005---the date VA received the Veteran's initial claim for compensation for this disability. In a letter issued that same month, the RO informed the Veteran of its decision, along with his appellate rights. He did not appeal the effective date of April 25, 2005 assigned to the award of service connection for a right inguinal hernia repair scar within the prescribed appeal period. In November 2009, the Veteran requested an effective date earlier than April 25, 2005 for the award of service connection for a right inguinal hernia scar. (See handwritten letter from the Veteran to VA, received by the RO in November 2009). By an April 2010 rating action, the RO denied an effective date earlier than April 25, 2005 for the award of service connection for the right inguinal hernia scar. The Veteran appealed this rating action to the Board. The September 2005 rating decision, wherein the RO assigned an effective date of April 25, 2005 for the award of service connection for the right inguinal hernia scar, is final. The Veteran's claim for an earlier effective date for the grant of service connection for this disability, received by VA in November 2009, is essentially a claim for retroactive benefits. See 38 U.S.C.A. § 5110(a); Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). However, the Court has held that there is no such thing as a "freestanding" earlier effective date claim which can be raised at any time. Rudd, 20 Vet. App. at 299. Accordingly, the claim must be dismissed. The only way the Veteran could attempt to overcome the finality of the RO's September 2005 rating decision in an attempt to gain an earlier effective date is to request a revision of the decision based on CUE. See Leonard, 405 F.3d at 1337; Rudd; see also 38 U.S.C.A. § 5109A(a) (West 2002) ("a decision by the Secretary . . . is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."). However, the Veteran has not asserted that the September 2005 rating decision contained CUE. Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom, Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). Given the foregoing, the Veteran is legally and factually precluded from receiving an effective date prior to April 25, 2005 for the award of service connection for a right inguinal hernia scar. The Court has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an initial disability rating in excess of 10 percent for right ilio-inguinal nerve entrapment is denied. The claim for an effective date earlier than April 25, 2005 for the award of service connection for a right inguinal hernia scar is dismissed. REMAND The Board finds that additional substantive development is necessary prior to further appellate review of the Veteran's claim for service connection for a lung disability (originally claimed as scar tissue of the lungs). The Veteran contends that he currently has a pulmonary disability that is the result of having been exposed to asbestos while serving aboard the USS CAMDEN AOE-2 from 1972 to 1975 and from exposure to various chemicals, paint and other peoples' smoke during military service. The Veteran's DD 214 and service personnel records confirm that he was assigned to the USS CAMDEN (AOE-2). His military occupational specialist was equivalent to a civilian "Water Trans. Occups." He also completed fire fighting training in 1972. The Veteran's service treatment records from his initial period of military service reflect that from early May 1973 to mid-October 1974, he received treatment on several occasions for upper respiratory infections (May 1973) and cold and flu-like symptoms. An August 1975 service separation examination report reflects that the Veteran's lungs were evaluated as "normal." A January 1977 service treatment record from the Veteran's second period of service, show that he reported having had a recent bout of "'flu syndrome.'" Post-service VA and private medical records reflect that the Veteran had a history of having smoked cigarettes since 1971; smoked two packs of cigarettes a day; and, had been employed in manual labor for the previous 17 years. (See April 2004 and May 2005 VA treatment reports). A December 2010 report, prepared by Riverside Hilton Family, reflects that the Veteran's medical problems included, but were not limited to, acute bronchitis, chronic obstructive pulmonary disease (COPD) without exacerbation, tobacco use disorder, and dypsnea. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2011); Robinette v. Brown, 8 Vet. App. 69 (1995). The Veteran has not been afforded a VA examination in conjunction with his claim for service connection for a pulmonary disability (originally claimed as scar tissue of the lungs). Because the Veteran has provided competent lay statements as to the onset of his lung symptomatology; service personnel evidence that he served aboard the USS CAMDEN AOE-2 and had completed fire-fighting training; in-service clinical findings of treatment for upper respiratory infections and flu-like symptoms; and, post-service evidence of long-standing tobacco abuse and diagnoses of several pulmonary disabilities, the Board finds that he should be afforded a VA examination with opinion to determine the nature and extent of any current pulmonary disability(ies) found on examination. See 38 C.F.R. § 3.159(c)(2) (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA general medical examination, with an appropriate examiner. The purpose of the examination is to determine the etiology of any currently present pulmonary disability. The Veteran's claims files must be made available to the examiner, and the examiner must review the entire claims files in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should provide details about the onset, frequency, duration, and severity of the symptoms of any pulmonary disability (ies) found on examination. The examiner must provide an opinion that as to whether it is at least as likely as not that any currently diagnosed pulmonary disability(ies) diagnosed found on examination is etiologically related to the Veteran's period of active service, to include his claimed exposure to asbestos, harsh chemicals (e.g., paint) and second-hand smoke. The examiner is hereby informed that the Veteran's service aboard the USS CAMDEN AOE-2 is confirmed. The examiner must comment on the significance, if any, of service treatment records reflecting that the Veteran received treatment for upper respiratory infections and flu-like symptoms during his initial period of military service. The examiner should provide a rationale for this opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a rationale as to why this is so, and must indicate what if any additional evidence would permit an opinion to be made. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claim of entitlement to service connection for a lung disability (original claimed as scar tissue of the lungs). If the benefit sought on appeal remains denied, furnish the Veteran a Supplemental Statement of the Case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims files are returned to the Board for further appellate consideration. The Veteran as the right to submit additional evidence and argument on the matter 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. 2011). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs