Citation Nr: 1306435 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 05-06 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a right inguinal herniorrhaphy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1978 to March 1991, April 2000 to August 2000, and February 2001 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Jurisdiction was subsequently transferred to the RO in Atlanta, Georgia. In November 2009, the case was remanded to schedule a Travel Board hearing. In July 2010, the Veteran testified before the undersigned Acting Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. In February 2011, the Board remanded the case for additional development. The case has since returned for further appellate action. A review of the Veterans Virtual VA electronic claims file reveals copies of additional VA outpatient treatment records. As these records have been considered by the RO-as reflected in the July 2012 supplemental statement of the case-remand for initial consideration of this evidence is not required. FINDING OF FACT The Veteran's residuals of a right inguinal herniorrhaphy include abdominal pain and recurrent hernia; post-operative recurrent hernia, or an unoperated irremediable hernia, not well supported by a truss or not readily reducible, has not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a right inguinal herniorrhaphy are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.114, Diagnostic Codes 7338 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Veteran was provided adequate VCAA notice, including notice with respect to the disability-rating element of his claim, in letters dated in September 2003 and July 2008. After issuance of these letters, and opportunity for the Veteran to respond, the July 2012 Supplemental Statement of the Case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Although the veteran has not been provided notice of the type of evidence necessary to establish an effective date for an increased rating, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that an increased rating is not warranted for the disability. Consequently, no effective date for an increased rating will be assigned, so the failure to provide notice with respect to this element of the claims is no more than harmless error. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, post-service VA treatment records, treatment records from the Hanscom Air Force Base obtained pursuant to the Board's February 2011 and the reports of VA examinations, to include a July 2011 VA examination, also conducted pursuant to the Board's February 2011 remand. Also of record and considered in connection with the appeal is a transcript of the Veteran's Board hearing, as are various written statements provided by the Veteran, and by his representative on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim is warranted. The instructions contained in the Board's last remand, which included requesting and obtaining private and VA treatment records and affording the Veteran a VA examination to determine the current severity of his disability, have been complied with. Therefore, no further remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the examination dated in July 2011 was conducted by a medical professional who evaluated the Veteran, solicited history and symptomatology, and provided a diagnosis based upon examination. It is found to be adequate. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. II. Factual Background Treatment records reflect that the Veteran underwent surgical treatment in February 2002 to report a recurrent incisional ventral hernia with left direct inguinal hernia. Repair of a right inguinal hernia was not indicated. Treatment records following the surgery reflect the Veteran's complaints of abdominal pain. A May 2003 report from the Hanscom Air Force Base reflects that the Veteran complained of abdominal pain. An August 2003 VA outpatient treatment report reflects that the Veteran developed a right inguinal hernia as a result of a lithotripsy to remove kidney stones, for which he underwent surgical repair in 1990. He next had a left inguinal hernia hernia/mesh repair in 2002. He stated that he experienced constant abdominal pain in the area of the old surgical scars. He also experienced chronic severe constipation, sometimes going 1 to 2 weeks without bowel movements. A physical examination of the abdomen revealed that the abdomen was nontender, with no active bowel sounds, no organomegaly, masses or bruits. There was an ithotomy scar on the right with hernia repair scar just below. An impression of inguinal hernia was indicated. Follow-up in the surgical clinic for "possible hernia re-do" was also noted. On VA examination in September 2003, the Veteran complained of distention and pain in his abdomen after supper, which he attributed to an original failed surgery to remove kidney stones. He ate only one meal per day. He had recently been diagnosed with another hernia. A CT scan was negative for adhesions. On physical examination, the examiner was unable to palpate any inguinal hernia. An assessment of kidney stones and left inguinal hernia was indicated. A March 2004 report reflects that the Veteran was to be seen for surgical consult for possible inguinal hernia repair. He had significant daily pain in the area of prior repairs. The abdomen was nontender with no active bowel sounds, no organomegaly, masses, or bruits. An August 2004 VA outpatient treatment report reflects that the Veteran complained of pain in the area of prior hernia repair attempts. The abdomen was nontender on examination. There were no active bowels sounds, organomegaly, masses, or bruits. There was a hernia repair scar. An impression of inguinal hernia was noted. In February 2005, the Veteran was seen in the general surgery clinic for general reports of persistent groin pain. On physical examination, the Veteran had complex scars in the right lower abdomen and impressive bulging over both inguinal regions, left greater than right. He had significant tenderness, especially over the left internal ring. There was palpable mesh in the right groin. While there were impressive bilateral groin impulses on coughing and straining, the examiner could not with certainty demonstrate a reducible defect in either groin. The examiner provided an assessment of bilateral groin pain, left greater than right. He did not think that the Veteran could be helped by further groin exploration at that time. An April 2005 VA CT scan report reflects an impression of post-repair of inguinal hernia. The left lower pelvis and inguinal canal were stable in appearance with probable postoperative changes. There was no definite hernia appreciated on the study. On VA examination in September 2008, the Veteran reported surgical repair of a right inguinal hernia in 1990. He claims that he had re-herniation and another surgery in February 2001. He described pain in the area of the scars as well as in the inguinal areas on a daily basis. He did wear a truss anytime he was doing anything physical. He worked as a teacher in truck mechanics, but was unable to work as a mechanic due secondary to the scars and the pain that he had in the hernia areas. With respect to daily activities, the Veteran reported that he could not be as physical as he would like because of the pain in the scar area and because he believed that he had hernias. On physical examination, there was a 15 centimeter scar across the pelvis. There was no herniation noted in the scar. The scar was slightly tender to palpation. It was slightly adhered to underlying tissue. There was a right-sided pelvic scar measuring approximately 11 centimeters in length. This showed no re-herniation. It was also somewhat adherent to underlying structure and it was tender to palpation. There was an 8 centimeter scar in the pubic area that seemed to start at the end of the right-sided scar. It was also slightly adherent and tender to palpation. The examiner did not see any reherniation at any of the scars. There were no scrotal masses or hernias into the scrotum. There was presentation in the inguinal canals bilaterally with a Val salvo maneuver performed by the patient, significant for indirect inguinal hernias bilaterally. A diagnosis of status post right inguinal hernia repair was noted. The Veteran currently had bilaterally indirect inguinal hernias present and tenderness in the scars times three in the lower pelvic area. In an October 2008 addendum opinion, the September 2008 VA examiner noted that the hernias were indirect and therefore reducible. The Veteran wore a truss and did get support from the truss. During the Veteran's July 2010 Board hearing, he testified that he experienced constant, chronic pain in the abdominal area related to his inguinal hernia. He reported that the hernias were unable to be supported. He indicated that he could not stand for more than 20 to 30 minutes at a time, and that his hernia disability limited his ability to move around and affected his gait. A November 2010 VA outpatient treatment report notes abdominal pain secondary to surgical scars. On VA examination in July 2011, the Veteran reported that he had suffered chronic abdominal pain since the 1990 right inguinal hernia surgery. He underwent surgery for a left inguinal hernia in 2002. He took tramadol daily for pain. The Veteran was not wearing a truss or belt on examination. On physical examination, there was no hernia present. The examiner noted two scars extending to the right flank. The scars were mildly hypertrophied, non-deforming, and mildly tender. There was no bulging noticed with palpation or with coughing. There was no evidence of an active inguinal hernia supported by a truss and/or readily reducible with observation and palpation. There were no adhesions noted on the scar sites. A CT scan of the pelvis was negative with no evidence of pelvic mass or inguinal hernia. An ultrasound of the abdomen demonstrated no evidence of hernia in the inguinal regions bilaterally. The examiner diagnosed no active right inguinal hernia requiring the support of a truss or belt. The examiner noted that, upon careful review of the Veteran's medical records and physical examination findings, the Veteran did not have active right inguinal hernia, and there was no evidence of recent surgery following surgical treatment in 2001. She also noted two linear scars that were tender to palpation. The Veteran was not employed at the time of examination he reported that he was not currently employed due to chronic abdominal pain. The examiner commented that the Veteran was unable to work for prolonged periods due to recurrent right flank pain secondary to nephrolithiasis and cholilithiasis. He found that the residuals of right inguinal herniorrhaphy would cause significant effects on occupation including increased absenteeism. With respect to daily activities, the examiner noted that the disability would have mild affects on activities such as chores, shopping, exercise, sports, and recreation. Additional VA outpatient treatment records dated through July 2012 reflect treatment for a variety of disabilities including renal calculi and diabetes mellitus, but do not discuss the Veteran's inguinal hernia. An August 2011 report reflects that the Veteran was working full time. III. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Historically, the RO granted service connection for residuals of a right inguinal herniorrhaphy in an April 1991 rating decision. A 10 percent rating was assigned, effective March 13, 1991. The Veteran filed the instant claim for increased rating in July 2003. He appeals a May 2004 rating decision continuing the 10 percent rating. The Veteran's residuals of a right inguinal herniorrhaphy are rated as 10 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7338. Under Diagnostic Code 7338, a small hernia, a reducible hernia, a hernia without true hernia protrusion, or a hernia that is preoperative and remediable is rated as noncompensable. A 10 percent rating is warranted for a recurrent post-operative hernia that is readily reducible and well supported by a truss or belt. A small, post-operative recurrent hernia, or an unoperated irremediable hernia, not well supported by a truss, or not readily reducible, warrants a 30 percent schedular rating. A large post-operative recurrent hernia that is considered inoperable, which is not well supported under ordinary conditions and is not readily reducible, warrants a 60 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7338. Considering the pertinent evidence in light of the above, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected residuals of a right inguinal herniorrhaphy is not warranted at any point pertinent to this appeal. As noted above, a next-higher 30 percent rating is warranted for a small, post-operative recurrent hernia, or an unoperated irremediable hernia, not well supported by a truss, or not readily reducible. In this case, while the Veteran has indicated that his right inguinal hernia is not well supported by a truss, the medical evidence shows otherwise. Rather the September 2008 VA examiner found that the Veteran's hernia was indirect and therefore reducible. He Veteran wore a truss and did get support from the truss. On VA examination in July 2011, no active right inguinal hernia requiring the support of a truss or belt was found. Treatment records likewise indicate that the Veteran did not suffer from recurrent hernia that it unsupported by a truss or is not readily reducible. The Veteran is certainly competent to report his symptomatology. However, in this case, the medical evidence is more probative on the issue of whether the Veteran's hernia is well-supported by a truss. This evidence is provided concurrent with the Veteran seeking treatment and is authored by medical professionals with specific knowledge and training that make their statements regarding the successful use of a truss more probative than the Veteran later statements made in connection with this claim. The Board acknowledges that the record reflects that the Veteran's residuals of a right inguinal herniorrhaphy have involved scarring with pain associated with the scars. However, the Veteran has already been assigned a separate, 10 percent rating for disability associated with the scars. The disability also is not shown to involve any other factor(s) that warrant consideration of any other provision(s) of the rating schedule. The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point relevant to this appeal has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration. While the Veteran's residuals of a right inguinal herniorrhaphy cause some interference with his ability to work and perform activities of daily living, such functional impact is considered in the rating assigned. While the Veteran was not working at the time of the July 2011 examination due to his abdominal pain from the hernia, the examiner determined that the Veteran's unemployment was largely secondary to nephrolithiasis and cholilithiasis. In addition, a later treatment report reflects that the Veteran was working full-time. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the disability under consideration, and that a rating in excess of 10 percent for residuals of a right inguinal herniorrhaphy must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for the disability, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 47, 53- 56 (1990). ORDER A rating in excess of 10 percent for residuals of a right inguinal herniorrhaphy is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs