Citation Nr: 1307343 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 11-08 235 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for service-connected inguinal hernia. 2. Entitlement to a compensable disability rating for service-connected traumatic deviated septum. 3. Whether there was clear and unmistakable error (CUE) in a June 1967 rating decision which awarded a 10 percent disability rating for service-connected duodenal ulcer disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from November 1956 to August 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the VARO in San Juan, Puerto Rico. That decision determined that CUE had been found in a March 1992 rating decision that had awarded a noncompensable disability rating for the Veteran's service-connected inguinal hernia, effective March 1, 1992, and held that a 10 percent disability rating was issued was instead warranted as of that same date. The December 2009 decision also determined that there was no CUE in a June 1967 rating decision which awarded a 10 percent disability rating for service-connected duodenal ulcer disease; and denied a compensable disability rating for the service-connected traumatic deviated septum. This appeal has been advanced on the Board's Docket pursuant to the provisions of 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). To the extent that the Veteran is claiming entitlement to an increased disability rating for his duodenal ulcer disease, that matter has not been developed or adjudicated for the Board's review at this time. The matter is referred to the RO for its consideration. FINDINGS OF FACT 1. The Veteran had inguinal hernia repair in 1984. On current examination the inguinal hernia was described as asymptomatic and not recurrent. 2. The Veteran's deviated nasal septum is not shown to cause or more nearly approximate 50 percent obstruction of the nasal passages of both sides or complete obstruction on one side. 3. The Veteran was in receipt of a temporary total rating based on hospitalization for service-connected disability with convalescence from January 5, 1992. A subsequent finding of CUE by rating decision dated in December 2009 resulted in an increase of the prehospital rating to 10 percent, effective March 1, 1992, the day after the expiration of the temporary total disability rating. Prior to the hospitalization in March 1992, there was no informal claim or pending unadjudicated claim for an increased rating for duodenal ulcer disease. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral inguinal hernia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5017 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7338 (2012). 2. The criteria for a compensable rating for deviated nasal septum have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.31, 4.97, Diagnostic Code 6502 (2012). 3. The criteria for an effective date earlier than March 1, 1992, for the award of a 10 percent disability rating for duodenal ulcer disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) redefined VA's duty to assist a Veteran in developing a claim for benefits. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.56(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform a claimant of the information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds there has been essential compliance with the mandates of the VCAA. The Veteran has been sent letters at various times throughout the appeal period, including July 2009 and September 2009, with regard to his claims. Those letters informed the Veteran of the evidence needed to substantiate his claims. They also delineated the evidence VA would assist in obtaining and the evidence it was expected the Veteran himself would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claims file contains a Report of Contact dated in March 2012 indicating the Veteran was contacted in order to clarify whether he had additional evidence to submit. According to the Veteran he had no further evidence to submit and he wanted VA to expedite his claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has obtained the Veteran's service treatment records and all identified post service pertinent treatment records. In a November 2012 remand, the Board instructed that the RO/AMC obtain additional treatment records. The RO/AMC did so and associated the records with the claims file. The Veteran was also afforded VA examinations with regard to the increased rating claims. For the reasons discussed below, the examinations are adequate. In view of the foregoing, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims are thus ready to be considered on the merits. Analysis Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.22, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any increased rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, uniform ratings are appropriate for both the inguinal hernia and a deviated septum. Inguinal Hernia The RO has evaluated the Veteran's hernia under Diagnostic Code 7338. Under that code, a 10 percent rating is warranted in cases of postoperative and recurrent inguinal hernia, readily reducible, and well supported by truss or belt. A 30 percent rating is warranted in cases of small postoperative and recurrent, or unoperated irremediable, that is not well supported by truss or not readily reducible. A 60 percent rating is warranted when there is large, postoperative, recurrent inguinal hernia, that is not well supported under ordinary conditions and not readily reducible, when considered inoperable. A note to Code 7388 provides that 10 percent is to be added for bilateral involvement, provided the second hernia is compensable. This means that the most severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. A review of the record reveals that by rating decision dated in December 2009, CUE was found in the evaluation of inguinal hernia. It was determined that a rating evaluation in March 1992 granted a zero percent evaluation for hernia since March 1, 1992. In 2009, the RO found that a 10 percent evaluation should have been assigned effective March 1, 1992, since when the post surgery convalescence period for the condition expired, the left inguinal hernia was shown to be recurrent. The right hernia was not recurrent and therefore noncompensable. Accordingly, a retroactive increase for inguinal hernia was granted, the 10 percent rating effective March 1, 1992, the date after the Paragraph 30 for hospitalization benefit ended. A review of VA outpatient treatment records dated in 2009 does not show that a higher evaluation is warranted. The Veteran was accorded a rating examination by VA in March 2012. It was indicated that he had undergone traditional open repair in 1984 and again in 1991. Currently, no hernia was detected on either side. There was no indication for a supporting belt. The examiner opined that the Veteran's hernia condition did not impact on his ability to work. A review of the Veteran's Virtual VA treatment records reflects he has been seen on periodic occasions between May and October 2012 for unrelated complaints. An examination in October 2012 in conjunction with eye surgery reflected that physical evaluation was essentially normal. No pertinent complaint or abnormalities were identified. The pertinent evidence reflects that a rating higher than the 10 percent currently in effect is not warranted for the Veteran's disability under Code 7338. On examination in 2012, a hernia was not detected on either side. Obviously, then, there is no evidence that either hernia has been irremediable, not well supported by truss, or not readily reducible. A rating higher than 10 percent is therefore not warranted. The Board has considered the Veteran's general statements indicating that his disability is worse and not adequately compensated by the 10 percent rating now in effect. However, while he is competent to report a worsening of symptoms, the specific and detailed examination findings of trained healthcare professionals are entitled to greater probative weight than general lay assertions of the Veteran. Consequently, the Board finds that the weight of the evidence does not support a rating in excess of 10 percent for the Veteran's inguinal hernia. Deviated Septum The Veteran's deviated septum is rated under 38 C.F.R. § 4.97, Diagnostic Code 6502. Under Code 6502, a 10 percent rating is warranted for deviation of the nasal septum with a 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. The 10 percent rating is the only specified schedular rating under Code 6502. The Rating Schedule authorizes the assignment of a zero percent (noncompensable) evaluation in every instance where the Rating Schedule does not provide such an evaluation and the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A review of the record reflects that in February 2012, the Veteran was evaluated for his deviated nasal septum. The examiner stated there was not at least 50 percent obstruction of the nasal passage on either side due to the septal deviation. The examiner also stated there was not complete obstruction on one side due to traumatic septal deviation. The examiner remarked that there was no functional impairment attributable to the deviated septum. A review of the Virtual VA records reflects treatment and evaluation on periodic occasions in 2012 for unrelated complaints. The records note the report of an outpatient visit in September 2012. The Veteran was accorded a general medical examination at that time. Examination of the nose at that time was described as negative. The above evidence reflects that the Veteran's symptoms do not more nearly approximate the 50 percent obstruction of nasal passage on both sides or complete obstruction on one side warranting a 10 percent rating under Code 6502. The Veteran himself has not indicated the degree of restriction of the nasal passages. There has been no showing of loss of part of the nose, scarring, loss of part of one ala, or other obvious disfigurement warranting a compensable rating under Code 6504. There has been no showing of incapacitating episodes and the weight of the evidence is against a compensable rating for deviated nasal septum under any potentially applicable diagnostic code. The Board has considered the Veteran's general statements. While he is competent to report a worsening of his symptoms, the more specific medical evidence of record is entitled to greater probative weight than the general lay assertions of the Veteran. Consequently, the Board finds that the weight of the evidence supports a noncompensable rating for the reasons indicated in the above analysis. As to consideration of referral for an extraschedular rating for the deviated septum and the inguinal hernia, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008) aff'd sub nom Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the disability picture meets the second inquiry, the third step is to refer the case to the Undersecretary for Benefits or the Director of the Compensation & Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects the symptoms of the Veteran's disabilities at issue were contemplated by the applicable rating criteria. With each disability, the Board has been able to compare the Veteran's symptoms to the relevant criteria, and there were few, if any, symptoms that were not listed in those criteria. Thus, consideration of whether the disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. There has been no showing of functional impairment attributable to either disability at issue. There also has been no indication that either disability has required frequent hospitalization. The Veteran's symptoms have not otherwise rendered him practical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular evaluation is not warranted in this case. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that, the symptoms of the disabilities at issue do not more nearly approximate the criteria for a higher rating. The benefit of the doubt doctrine is therefore not for application, and the claims for higher ratings must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Whether There Was CUE in the June 1967 Rating Decision Awarding a 10 percent Disability Rating for Duodenal Ulcer Disease The Board notes that a review of the record reveals that by rating decision dated in June 1967, the RO amended a February 1961 rating decision to reflect a zero percent rating for the Veteran's ulcer disease from August 22, 1960, the day following separation of service to a 10 percent, effective May 29, 1967. The increased rating was predicated upon medical evidence dated in May 1967 showing a worsening of the ulcer disease. It was indicated the Veteran was having problems with meals, hyperacidity, and antral gastritis. However, no ulcer was demonstrated. The Veteran and his representative essentially maintained there was CUE in the 1967 rating action because he should have been awarded the same 20 percent rating as he indicated by an inservice physical evaluation board. The Board notes initially that decisions by other agencies, although considered by VA, are not binding on a determination by VA. Previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be revised or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed one. 38 C.F.R. § 3.105(a). In order for a claimant's CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator (there must be more than simple disagreement on how the facts were made or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and the determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Phillips, 10 Vet. App. 31; Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313. CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is a very specific and rare kind of error of fact or law that compels a conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1994). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). A review of the evidence of record reveals that by rating decision dated in June 1967, the disability rating for the Veteran's ulcer disease was increased from noncompensable to 10 percent, effective May 29, 1967, the date of receipt of the Veteran's claim for an increased evaluation. He stated his condition had become worse. The rating action referred to VA outpatient records showing complaints of acidity and the need for medication. Examination showed the presence of hyperacidity. An upper gastrointestinal series showed antral gastritis, but no ulcerations. Epigastric tenderness was also noted. Accordingly, a 10 percent rating was assigned, effective the date of receipt of the claim for increased disability benefits. The Veteran argues that a physical evaluation board in service evaluated his ulcer disease as 20 percent disabling and VA should go along with that evaluation since the day following his separation from service. However, as noted above, decisions by other agencies are not binding on the Board. The Board has its own rating criteria that are used to evaluate a Veteran. The Board notes in fact in this case that when the Veteran was accorded a rating evaluation by VA in 1954, no disability of the digestive system was identified. The Veteran did not express any complaint with regard to the digestive system at that time. Also, the Veteran was accorded another rating examination by VA in January 1961. At that time the Veteran did complain of stomach problems. He was accorded a special gastrointestinal examination and it was noted that while in service in April 1960 a duodenal ulcer was discovered. However, the Veteran responded well to medication. Currently, he complained of symptoms that included epigastric discomfort, nausea, night pains, and rapid filling on eating. He denied any constipation, diarrhea, or bleeding. There was no jaundice. On current examination there was minimal tenderness in the periumbilical region. No organs or masses were felt. Peristalsis appeared normal. An upper gastrointestinal study was entirely normal. He was given a diagnosis of duodenal ulcer disease. The examiner commented "the ulcers have apparently healed at present." Subsequent thereto there was no further mention of problems with the ulcer disease until the receipt of a claim in May 1967 at which time the Veteran indicated that his disabilities had worsened. This led to his being evaluated as 10 percent disabling. The Board notes that Diagnostic Code 7305 provides for a 10 percent rating for duodenal ulcer disease which is mild, with recurring symptoms once or twice yearly. The next higher rating of 20 percent is authorized when the ulcer disease is moderate, with recurring symptoms of severe symptoms 2 or 3 times a year averaging 10 days in duration; or with continuous moderate manifestations. 38 C.F.R. § 4.114, Code 7305. In view of the criteria which the Board uses for evaluating disabilities, there was no showing at any time prior to 1967 that the ulcer disease was manifested by a disability picture that would warrant a rating in excess of zero percent prior to 1967 or in excess of 10 percent subsequent to 1967. In summary, the 1967 rating decision assigning a 10 percent rating for the Veteran's ulcer disease was based on the application of the pertinent statutory and regulatory provisions extant at the time to the correct facts as they were known at the time. As such, the Board finds there is no CUE in the June 1967 rating decision assigning a 10 percent rating for the Veteran's ulcer disease. ORDER A disability rating in excess of 10 percent for inguinal hernia is denied. A compensable rating for traumatic deviated septum is denied. There is no CUE in the 1967 rating decision that awarded a 10 percent rating for the Veteran's service connected duodenal ulcer disease. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs