Citation Nr: 1328068	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  10-13 643	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to a rating in excess of 30 percent for a right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain.


REPRESENTATION

Appellant represented by:	Minnesota Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel



INTRODUCTION

The Veteran had active service from February 1975 to April 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which continued a previously assigned noncompensable rating for a right inguinal hernia, status post herniorrhaphy with residual scar and with nerve entrapment syndrome, previously rated as hydrocele of right spermatic cord.

In a June 2010 rating decision, the RO increased the assigned rating for right inguinal hernia status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain (a right inguinal hernia disability) to 30 percent, effective August 31, 2009, which was the date the claim for an increased rating was received by VA.  The United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal."  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Consequently, the issue of entitlement to an increased rating for a right inguinal hernia remains in appellate status.

In February 2013, the Board remanded the claim to allow the RO to review additional evidence received since July 2010 and to issue a supplemental statement of the case (SSOC).  An SSOC was issued in March 2013 and continued the 30 percent rating for a right hernia disability.


FINDING OF FACT

A right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain has been manifested by tenderness to light touch at the right inguinal region and scrotum, neuritis, and neuralgia without recurrent hernia or swelling.


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for a right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.114, Diagnostic Code 7338 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.

In this case, the Veteran was provided VCAA notice in a September 2009 letter, advising him of what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter included information regarding how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations.  The case was readjudicated in March 2013.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway  v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

The Board also finds that VA has complied with all assistance provisions of the VCAA, to include substantial compliance with the prior remand.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The evidence of record contains the Veteran's service treatment records; VA outpatient treatment records; statements from a private physician; records from the Social Security Administration (SSA); VA examination reports and medical opinions; and lay statements from the Veteran, his deceased spouse, and his service representative.  There is no indication of relevant, outstanding records that would support the Veteran's claim.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal.




Criteria & Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  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).  Hence, the following analysis in the case is undertaken with the possibility that staged ratings may be appropriate.

The Veteran's right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain is rated as 30 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7338.  He contends that his right inguinal hernia disability is more severely disabling.  

7338
Hernia, inguinal:
Rating

Large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable
60

Small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible
30

Postoperative recurrent, readily reducible and well supported by truss or belt
10

Not operated, but remediable
0

Small, reducible, or without true hernia protrusion
0
Note: Add 10 percent for bilateral involvement, provided the second hernia is compensable. This means 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, Diagnostic Code 7338 (2012).

The Board notes that a separate compensable rating is assigned for the Veteran's surgical scar, status post right inguinal herniorrhaphy in September 2008.

The impression of a January 2009 VA ultrasound was normal appearing testicles bilaterally; small nonspecific hydrocele in the left scrotum; no evidence of recurrent inguinal hernia by ultrasound examination. 

In a September 2009 statement in support of his claim, the Veteran stated that since his 2008 surgery, his "pulling like pain/strain" had not changed.  He described his right inguinal hernia disability as "scary" and asserted that walking more than a block or lifting items that were "too heavy (10 lbs)" caused a problem, bathroom visits could be painful, and that he had at least six "swelling episodes since surgery" including two emergency room visits to control pain and swelling.  He believed that "the next step [was] to remove a testicle."

In September 2009 correspondence, the Veteran's deceased wife described swelling and pain in the Veteran's right groin that limited his interactions with her and the children and his ability to perform household chores.

The Veteran was afforded a VA examination in November 2009.  He described constant pain in the right groin area with some numbness and "pulling" and with flare-ups occurring five to six times a year.  He reported moderate difficulties grooming himself, traveling, and bathing; severe difficulties doing chores and going to the toilet; and being prevented from shopping, exercise, sports, or recreation.  He stated that Tramadol and Percocet provided moderate relief.  On examination, the right testicular area, cord area was tender to touch; the left testicle was not as tender as the right.  There were excoriated areas all over the right groin and down into the scrotum where the Veteran had been scratching after an ultrasound five days earlier, which showed a small left hydrocele.  The diagnosis was indirect right inguinal hernia, operated (2008) with mesh, with a nerve entrapment syndrome at this time and scar residual.  The examiner commented that the Veteran had no hernias present at this time, but he believed that the Veteran's current pain was most likely nerve entrapment.  

During a June 2009 VA general surgery consultation, the Veteran complained of swelling in the right groin and testicles and a "pulling sensation" from the right ear to the right groin.  On examination there was no swelling or masses.  The assessment was no pathology on examination or on previous ultrasound.  The Veteran requested a hernia truss.  He was fitted with a size large hernia guard in August 2009.  A September 2009 surgery follow-up note one year after his surgery reflects his complaints of swelling and discomfort.  On examination, there was no erythema, no swelling, no recurrence of hernia palpable with straining, no trigger points or hyperesthesia, and no testicular swelling or abdominal tenderness.  The assessment was no detectable abnormalities, no evidence of neuropathic pain syndrome.  The Veteran requested a truss and was advised that in the absence of a recurrent hernia, this was unlikely to be of use.

In November 2009, the Veteran presented to the VA emergency department with a one-day history of worsening pain in his right groin.  On examination, there were no testicular masses, but there was tenderness to palpation at the base of the scrotum on the right side.  The impression of a November 2009 scrotal/testicular sonogram was negative study for testicular torsion; small left hydrocele; no obvious inguinal hernia appreciated, right inguinal lymphadenopathy present.  During a surgery consultation on the same day for recurrent right groin pain, the Veteran reported mild worsening over the last day.  On examination, there was mild tenderness at the right sided scrotum, but no appreciable hernia recurrence.  No acute surgical intervention was planned for the Veteran's exacerbation of chronic scrotal pain.

A December 2009 internal medicine note indicated that the Veteran has recurring right inguinal/scrotal pain that requires emergency room and clinic visits.  The assessment was scrotal/inguinal pain, and the physician indicated that the working diagnosis was nerve entrapment prior to the hernia repair with a component of hypersensitivity and allodynia.  He received additional medication for management of chronic pain.

During a January 2010 informal teleconference with RO personnel, the Veteran stated that medical personnel wanted to remove his right testicle, but could not guarantee that it would stop his ongoing pain.  He reported few episodes of swelling since his surgery and no current hernia.

A March 2010 VA treatment record reflects follow-up care for chronic right inguinal/scrotal pain, particularly now with intercourse.  During an April 2010 follow-up visit for chronic right testicular pain, he stated that his pain had increased again in severity and frequency.  He reported that he tried to do some lifting and had to stop.  The physician noted that the Veteran's son tried to sit on the Veteran's lap, causing enough pain that he had to switch to the left leg.  Examination findings during these visits were limited to vital signs and general appearance.  

The Veteran was afforded a VA peripheral nerves examination in May 2010 to evaluate his disability.  He reported continued, severe, daily right groin to right scrotal region pain, reduced to a certain amount by the truss he received within the last year and occasional swelling of the right groin and right scrotal region.  He stated that neuropathic medicine had not offered much relief and he relied on Percocet and Tramadol for pain in the right groin and right scrotal region.  On examination of the right pelvic region and right lower extremity, there was extreme pain with light touch over the right inguinal region and right scrotal region, neuritis (inflammation of a nerve), and neuralgia (pain along the path of a nerve).  

In the June 2010 rating decision, the RO explained that although the Veteran's disability does not meet all the criteria for the 30 percent evaluation, the RO determined that when the right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain, which is associated with his right inguinal hernia status post herniorrhaphy, is contemplated within the evaluation, then his condition most closely approximates the 30 percent evaluation.  The RO added that the medical evidence shows that the Veteran continued to have pain despite the use of a truss, and that although the hernia is not recurrent, the associated pain is recurrent. 

An August 2010 email from the Veteran's representative to VA personnel indicated that the Veteran was satisfied with the 30 percent rating, but would still like his claim sent to the Board.

In September 2010 correspondence, the Veteran stated that he has "massive swelling" four to six times a year and constant pain management by medications.

The Veteran was afforded another VA examination in November 2010.  He described constant pain in the right inguinal region and scrotum, worse with any movements, psychological stress, or touching; and intermittent swelling.  He denied any symptoms on the left side.  On examination, the abdomen was normal and nontender except in the right lower quadrant area extending approximately 3cm superior and lateral to the right inguinal hernia scar and inferior to the scar down to the inguinal ligament.  This area measured approximately 15x10 cm.  The skin was normal with no evidence of lesions and the Veteran exhibited exquisite pain behavior with very light touch.  The right inguinal region had normal skin with no visible or palpable swelling, and the Veteran again exhibited exquisite pain behavior with very light touch over this entire area.  Examination of the right testicle and spermatic cord revealed normal testicle, no atrophy, and marked tenderness to light touch.  Following a review of the claims file and physical examination, the examining physician commented that the objective physical examination and test results do not support the severity of disability suggested by the Veteran's subjective complaints.

The Board has considered the medical and lay evidence of record, but finds that a preponderance of the evidence is against the claim for a rating in excess of 30 percent for a right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain.

The right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain has been manifested by tenderness to light touch at the right inguinal region and scrotum, neuritis, and neuralgia without objective medical evidence of recurrent hernia or swelling.  These findings more nearly approximate the criteria for no more than a 10 percent rating based on the fact that he had surgery for a right inguinal hernia and continues to have pain.  A 30 percent rating is not warranted, however, because the evidence does not reflect a small, postoperative recurrent inguinal hernia or an unoperated irremediable inguinal hernia that is not well supported by truss, or not readily reducible.  Similarly, a higher 60 percent rating is not warranted because the most convincing evidence of record does not demonstrate a large, postoperative, recurrent inguinal hernia that is not well supported under ordinary conditions and not readily reducible, when considered inoperable.  The Veteran's complaints of scrotal swelling have not been shown on examination or when he has sought treatment during exacerbations of the disability.  

Although the criteria for a rating higher than 10 percent are not met based on the medical evidence, the Board will not disturb the assigned 30 percent rating.

The Board also considered whether a rating higher than 30 percent is warranted based on other potentially applicable rating criteria, such as paralysis, neuritis, or neuralgia of the ilio-inguinal nerve.  See 38 C.F.R. § 4.124a, Diagnostic Codes 8530, 8630, 8730 (2012).  However, the Veteran is not shown to have paralysis of the ilio-inguinal nerve, and these rating criteria, which provide a maximum 10 percent rating for severe to complete ilio-inguinal nerve paralysis, neuritis, or neuralgia, do not provide for a rating higher than the 30 percent rating currently assigned.  

The Veteran is competent to describe symptoms he experiences such as pain.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  However, as a lay person, the Veteran is not competent to provide a medical diagnosis regarding recurrence of a right inguinal hernia as such matters require medical testing and expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  As discussed, his complaints of swelling have not been noted on evaluations or during treatment.  Thus, the Board accords significantly greater probative value to the medical evidence of record than to the Veteran's lay assertions on these points.

For all the foregoing reasons, the Board finds that the most probative and credible evidence does not support the assignment of a rating in excess of 30 percent for the right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain at any point during the course of the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Therefore, entitlement to a higher rating for a right inguinal hernia disability is not warranted, and the claim must be denied.

The Board has considered whether the Veteran's right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  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.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's right inguinal hernia status post herniorrhaphy disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology, such as recurrent inguinal hernia, than is shown by the evidence.  It is not shown to require frequent hospitalization or marked interference with employment.  The disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

A rating in excess of 30 percent for a right inguinal hernia, status post herniorrhaphy with right ilio-inguinal nerve entrapment with right orchialgia/spermatic cord pain is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs