Citation Nr: 1302971 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 12-18 476 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for recurrent left inguinal hernia, status post surgical repair. REPRESENTATION Appellant represented by: Lawrence S. Kibler, Attorney ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to December 1958. This appeal to the Board of Veterans Appeals (Board) arose from a June 2010 rating decision in which the RO denied a rating in excess of 10 percent for recurrent left inguinal hernia, status post surgical repair. The Veteran filed a Notice of Disagreement (NOD) with the assigned rating in August 2010. The RO issued a statement of the case (SOC) in June 2012. In June 2012, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans Appeals). The Board notes that in the June 2010 rating action, the RO also denied a compensable rating for residuals of a hernia scar. The Veteran filed an NOD with the assigned rating in August 2010. The RO issued a SOC in June 2012. However, on the substantive appeal form of June 2012, it was specifically noted that the Veteran did not contest the evaluation of the residual surgical scar. Accordingly, that claim is not in appellate status before the Board. In January 2013, the Vice Chairman of the Board, on his own motion, advanced this appeal on the on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. The Veteran's recurrent left inguinal hernia, status post surgical repair, is currently assigned a 10 percent rating under 38 C.F.R. § 4.114, Diagnostic Code 7338. Under that code, a 10 percent rating is warranted for a recurrent postoperative inguinal hernia which is readily reducible and is well supported by a truss or belt. A 30 percent rating is warranted for a small recurrent postoperative hernia, or an unoperated irremediable hernia, which is not well supported by a truss or is not readily reducible. When there are bilateral inguinal hernias, the more severely disabling hernia is evaluated, and 10 percent is added for the second hernia if it is disabling to a compensable degree. A review of the pertinent evidence on file reveals conflicting information regarding the severity of the Veteran's hernia condition. Briefly summarized, on VA examination in April 2010 a left inguinal hernia was present, described as 1 cm in size, recurrent, and reducible. A subsequent VA note of July 2010 reflects that the Veteran was seen for lower left quadrant pain and bulging. It was noted that even after pushing on it, the bulge was still present and did not go away. On recent VA examination in October 2012, no true hernia protrusion was found on either the right or left side, and there was no indication for a supporting belt. The Board observes that there are significant gaps in the evidentiary record in this case. In this regard, it appears that the Veteran primarily receives treatment for his hernia through VA. VA records last printed on April 1, 2010, are on file and appear to be current through that date. Additional VA records submitted by the Veteran dated from April to July 2010, were added to the file in August 2010, but it is not clear if these represent all of the pertinent treatment records from this time period. It does not appear that any VA treatment records subsequent to July 2010 are on file. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the RO should request all outstanding records of VA evaluation and/or treatment of the Veteran's inguinal hernia dated from April 1, 2010, forward. The Board believes that obtaining this evidence will also provide a more complete picture of the frequency, nature and severity of the symptomatology associated with the inguinal hernia. In doing so, the RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. In addition, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include arranging for him to undergo examination, if warranted) prior to adjudicating the claim on appeal. The RO's adjudication of the claim for a higher ratings should include consideration of all evidence added to the record since the RO's last adjudication of the claim. Additionally, the RO's adjudication of the claims should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), consistent with Hart v. Mansfield, 21 Vet. App. 505 (2007), is warranted. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain all of the Veteran's outstanding, pertinent VA records of evaluation, hospitalization, and/or treatment (which appear to be from various sources including the Northampton, West Palm Beach, Hines and/or West Haven VAMCs) dated from April 1, 2010, forward. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the Veteran and his attorney letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo further examination, if warranted), the RO should readjudicate the claim for a higher rating for recurrent left inguinal hernia, status post surgical repair, in light of all pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim) and legal authority (to include consideration of whether staged rating, pursuant to Hart (cited above) is appropriate.) 6. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his attorney an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).