Citation Nr: 1324805 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 13-06 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 10 percent for ilio-inguinal nerve irritation, secondary to left inguinal herniorrhaphy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1960 to October 1962. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence establishes the Veteran has complete paralysis of the ilio-inguinal nerve. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran's ilio-inguinal nerve condition have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a Diagnostic Code 8530 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking a rating in excess of 10 percent for his service-connected ilio-inguinal nerve irritation secondary to left inguinal herniorrhaphy (left groin nerve condition). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an 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). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left groin nerve condition is currently rated 10 percent under Diagnostic Code 8530 for severe to complete paralysis of the ilio-inguinal nerve. This 10 percent rating is the maximum schedular rating available for Code 8530. In his June 2013 hearing before the Board the Veteran testified that during military service he underwent a surgical procedure to repair a hernia and retrieve his left testicle which was in the abdominal cavity. Following the surgery the Veteran reported he continued to have pain in his left groin. In April 2005 a private physician found an old suture in the Veteran's left groin, an apparent residual from the in-service procedure. The private physician removed the suture as well as the connected ilio-inguinal nerve. However, the Veteran reported he continues to have a great deal of pain in his left groin. The Veteran reported he could not walk due to the pain in his groin, as well as the neuropathy in both feet. The medical record of evidence supports the Veteran's assertions. In January 2012 a VA physician noted the Veteran had a fifty year history of pain in his groin and currently took Percocet to manage the pain. The Veteran reported his pain radiated upward to his left lower abdomen and stomach. The Veteran described his pain as sharp, radiating, and constant. The Veteran was also provided with a VA examination in November 2011. The examiner noted the Veteran had pain of approximately an 8 or 9 out of 10 in his left inguinal area which radiated to the scrotum and up the abdomen. The examiner opined the Veteran's ilio-inguinal nerve was completely paralyzed. The examiner also noted the Veteran was unable to use his left below-the-knee prosthesis due to the increased pain in the left inguinal area when walking with the prosthesis. As such, the Board is convinced the Veteran continues to be in a great deal of pain due to his service-connected left groin nerve condition. Unfortunately, he is already receiving the maximum rating for his condition under VA regulations. As pain is the primary symptom associated with damage to the nerve, the Veteran's complaints of pain are already contemplated in the schedular rating criteria. The Board sympathizes with the Veteran's request for an increased rating; unfortunately the Board is bound by VA regulations and cannot grant a rating in excess of the schedular criteria at Diagnostic Code 8530. It is understandable that he feels he is entitled to compensation for the many years he suffered with pain before the old suture was found and removed, but that is, unfortunately, not how VA awards disability compensation. Therefore the Veteran's claim for a rating in excess of 10 percent, the schedular maximum, is denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the Board finds the medical evidence fails to show anything unique or unusual about the Veteran's left groin nerve condition that would render the schedular criteria inadequate. The Veteran's main complaint was of ongoing excruciating pain. However, as discussed above, pain is the primary symptom associated with left groin nerve impairment and as such has already been specifically contemplated in the schedular maximum rating assigned. As such, the Board believes that the schedular rating criteria adequately describes the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is not currently employed. However, he has not alleged, and the evidence does not establish, that he is unemployable solely on the basis of his left groin nerve condition, his only service-connected condition. Instead, the records reflects the Veteran has extensive additional medical conditions which are not service-connected, including hypertension, diabetes, chronic obstructive pulmonary disorder, coronary artery disease, peripheral vascular disease, gastroesophageal reflux disease, and left leg amputation below the knee. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due solely to the Veteran's service-connected left groin nerve condition. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. 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 veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran 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 a letter dated in October 2011, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. 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). VA and private treatment records have been obtained, as have service treatment records. The Veteran was also provided with a hearing before the Board in June 2013. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars, and the VLJ and the representative asked questions regarding the nature and severity of the Veteran's service-connected left groin nerve condition. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, 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 The Veteran's claim for a rating in excess of 10 percent, the schedular maximum, for his service-connected ilio-inguinal nerve is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs