Citation Nr: 1320538 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-45 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating higher than 10 percent for a left inguinal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his November 2009 substantive appeal, the Veteran requested a Board hearing before a Veteran's Law Judge at the RO, but in May 2011 withdrew his request, stating that he was incarcerated and could not report to his scheduled hearing. The Veteran has not made any further hearing requests. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. During the period pertinent to his July 2008 claim for an increased rating, the Veteran's has had a postoperative, recurrent left inguinal hernia that is readily reducible and does not require a truss, which has caused pain, mildly affected his ability to engage in chores and recreation, and has moderately affected his ability to engage in such activities as exercise and sports. 2. At no point has the Veteran's hernia been shown to be irremediable, not able to be well supported by truss, not readily reducible, or inoperable, or to have in any way approximated symptomatology of such severity. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for a left inguinal hernia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7338 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Inguinal hernias are rated under Diagnostic Code (DC) 7338. Under DC 7338, large, postoperative, recurrent inguinal hernias, not well supported under ordinary conditions and not readily reducible, when considered inoperable, are rated 60 percent disabling. Inguinal hernias that are small, postoperative, recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible are rated 30 percent disabling. Inguinal hernias that are postoperative recurrent, readily reducible and well supported by truss or belt are rated 10 percent disabling. Inguinal hernias not operated, but remediable, and those that are small, reducible, or without true hernia protrusion are rated noncompensable (0 percent disabling). 10 percent is added for bilateral involvement, provided the second hernia is compensable, so that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. 38 C.F.R. § 4.114. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). By way of history, a rating higher than 10 percent for the Veteran's left inguinal hernia was denied by the Board in a March 2008 decision, in which all submitted evidence up to that point was considered. The Veteran did not appeal that decision, but filed a claim for increased rating for the same disability in July 2008. In his July 2008 claim, the Veteran asserted that he had had his third hernia in the same location, and in January 2009 and April 2009 statements he asserted that he needed an operation for his hernia and that his hernia was a problem in his everyday life. In his November 2009 substantive appeal, the Veteran further asserted that he was not able to walk or stand for even short periods of time due to his hernia. In a May 2011 written statement, he reported that he had to take pain mediation and had no work assignments during his incarceration. The report of an October 2008 VA examination reflects that the Veteran reported a recurrent left hernia, occurring three times spontaneously, which he was able to reduce by himself and which he had repaired via mesh after the second time that the hernia occurred. He reported that the hernia had gotten progressively worse. It was noted that the Veteran had a left hernia that had had tension free repair using mesh, with pain and resulting reducible hernia reoccurring. However, on physical examination, no hernia was present. It was noted that the Veteran had not been employed for five to ten years due to incarceration, that his hernia had moderate effect on exercise, but that he did not have any "real" daily activities other than walking, as he was incarcerated. Correctional managed care clinic notes from October 2008 to October 2009 reflect that the Veteran was noted to have had a left inguinal hernia bulging at the internal inguinal ring in October 2008. In May 2009, he was noted to have had a left inguinal hernia that was large but easily reducible, and it was noted that his gait was within normal limits. In October 2009, on follow-up for left inguinal hernia, the Veteran was noted to have had a suspected left inguinal hernia, but on objective examination the examiner found no signs or symptoms to make him suspect a hernia, and the abdomen was soft and nontender. The assessment was suspected left inguinal hernia, and the examiner stated that he could not facilitate outside medical care, as the examiner saw no indication to refer the Veteran to any general surgery at the time and felt that the condition could be managed at the unit level. The report of a January 2010 VA examination reflects that the Veteran had a recurrent left inguinal hernia, occurring three times, spontaneously occurring, that he had been able to self reduce. The Veteran reported that after the second time he was repaired with a mesh in 1999, and that the third recurrence had occurred in 2001. On examination, there was noted to be a left inguinal hernia present, with true hernia protrusion that was reducible, two centimeters in size, remediable or operable, which had been previously repaired. It was noted that a truss was not indicated, and that the Veteran was not employed due to being incarcerated. A February 2010 addendum to the January 2010 VA examination indicates that the examiner reviewed the claims file, and the diagnosis was left inguinal hernia. It was noted that the Veteran's disability had mild effect on chores, moderate effect on exercise and sports, and mild effect on recreation, providing evidence against this claim. Considering the pertinent evidence in light of the governing legal authority, the Board finds that a higher rating for the Veteran's left inguinal hernia must be denied. The record reflects that, during the period pertinent to his July 2008 claim for an increased rating, the Veteran has had a postoperative, recurrent left inguinal hernia that is readily reducible, which has not required any truss. While the Veteran's hernia has been noted to cause pain and affect his ability to engage in such activities as exercise and sports, at no point has the Veteran's hernia been shown to have been irremediable, not able to be well supported by truss, not readily reducible, or inoperable, or to have in any way approximated symptomatology of such severity. Therefore, a rating higher than 10 percent under DC 7338 is not warranted. While a May 2009 correctional managed care clinic note indicates that the Veteran's inguinal hernia was "large," the same note indicates that the hernia was easily reducible. Furthermore, on October 2009 follow-up, on objective examination there were no signs or symptoms to make the examiner suspect a hernia, and the abdomen was soft and nontender; on January 2010 VA examination, the Veteran's hernia was measured as two centimeters in size. Also, again, there is no indication that the Veteran's hernia has been not well supported under ordinary conditions or inoperable. Also, the Veteran has asserted that his hernia has been a problem in his everyday life, that he has not been able to walk or stand for even short periods of time due to his hernia, and that he has had no work assignments during his incarceration due to his disability. However, other than the Veteran's bare assertions, there is no evidence to support such claims; in this regard, in May 2009, the Veteran's gait was noted to have been within normal limits, and no difficulty walking or standing has ever been noted on VA examination or in any other treatment records during the relevant period. Also, in the February 2010 addendum, the January 2010 VA examiner noted that the Veteran's disability had only a mild effect on chores and recreation. The Veteran is competent to report matters within his own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran reports symptoms or functional impairment from his hernia not consistent with the medical evidence, the Board finds such assertions not to be credible. Furthermore, even considering the Veteran's assertions, given the evidence as a whole and the applicable rating criteria, the Veteran's disability does not approximate the criteria for a rating higher than 10 percent under DC 7338. Without considering the Veteran's complaints, his 10 percent rating could not be justified. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for higher rating. DC 7338 provides the rating criteria specifically for inguinal hernias. The Veteran's disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Again, the Veteran has asserted that his hernia has been a problem in his everyday life, that he has not been able to walk or stand for even short periods of time due to his hernia, and that he has had no work assignments during his incarceration due to his disability. The assigned rating of 10 percent rating reflects that his disability is productive of impairment in earning capacity. However, the record does not reflect that the average industrial impairment from his disability would be in excess of that contemplated by the assigned rating. The Veteran has had a postoperative, recurrent left inguinal hernia that is readily reducible and not has required a truss, which has caused pain, mildly affected his ability to engage in chores and recreation, and has moderately affected his ability to engage in such activities as exercise and sports. However, such manifestations are reasonably contemplated by the schedular criteria for a 10 percent rating under DC 7338, which specifically contemplates a postoperative, recurrent inguinal hernia that is readily reducible and well supported by truss or belt. The record does not reflect that the Veteran's inguinal hernia has caused impairment in earning capacity above what would be average for such disability. Also, the record does not reflect that the Veteran's disability has in any way been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability. Again, such disability has been noted to mildly affect his ability to do chores. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Finally, there has been no assertion or evidence that the Veteran is unemployable due to his service-connected disability. While the Veteran has not been employed during the appeal period due to incarceration, and reported that he had no work assignments, there is no evidence that he has not been able to work due to his disability; again, the medical evidence has shown such disability has mildly affected his ability to do chores. Also, the Veteran has not contended that such disability has rendered him unemployable. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, a rating in excess of 10 percent for a left inguinal hernia is not warranted, and there is no basis for staged rating of the Veteran's disability pursuant to Hart. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert, 1 Vet. App. at 53-56 Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in September 2008, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and identified non-VA treatment records have been obtained. Also, the Veteran was provided VA examinations in October 2008 and January 2010. These examinations and associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by examiners with appropriate expertise, and the January 2010 examiner, as noted in a February 2010 addendum, reviewed the claims file. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). The Board notes that, in a May 2011 statement, the Veteran asserted that during his two VA examinations he had so many restraints on his body that he did not understand how either examiner could have made a fair medical assessment of his injury, as it was the corrections facility's policy not to remove any restraint while visiting an outside agency. However, as discussed above, despite any restraint of the Veteran during his examination, the VA examiners were able to examine the Veteran and provide sufficient information to rate his disability in accordance with the appropriate criteria. While the Board understands the Veterans legitimate concerns regarding this unique issue, there is no indication in any examination report of how any restraint of the Veteran did not allow for proper evaluation of his inguinal hernia, nor has the Veteran identified how. Also, as discussed above, the pertinent VA examination findings are substantially consistent with the findings contained in the correctional managed care clinic notes from October 2008 to October 2009. Thus, the Board finds that the VA examinations and associated reports provided adequate information to decide the Veteran's appeal. Id. Beyond this fact, the Board does not have the authority to have the prison reduce its security procedures surrounding the Veteran during the examination. The fact that the Veteran was able to get an evaluation within the context of the fact that he is currently incarcerated suggests that the RO has made an extensive effort to assist the Veteran with the development of his case. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating higher than 10 percent for a left inguinal hernia is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs