Citation Nr: 1328686 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 12-11 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for left inguinal hernia secondary to service-connected right inguinal hernia. 2. Entitlement to an increased rating for right inguinal hernia, currently evaluated as 0 percent disabling. 3. Entitlement to an initial rating in excess of 10 percent for a post-surgical right hernia repair scar. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1962 to June 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from July and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In July 2011, the RO determined the Veteran's left inguinal hernia was not caused or aggravated by his right inguinal hernia repair and denied service connection. In November 2011, the RO determined there was no recurrent right inguinal hernia and continued the 0 percent rating. In the November 2011 rating decision, the RO also granted service connection for a post-surgical right hernia repair scar and assigned a 10 percent rating. In December 2011, the Veteran filed a notice of disagreement (NOD) contesting the 10 percent rating. The claims file does not contain a statement of the case (SOC) relating to that issue. Therefore, the claim must be remanded for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. The issue of entitlement to an initial rating in excess of 10 percent for post-surgical right hernia repair scar is addressed in the REMAND portion of the decision below and is REMANDED to the RO in Detroit, Michigan. FINDINGS OF FACT 1. There is no probative evidence that the Veteran's left inguinal hernia was caused or aggravated by his service-connected right inguinal hernia. 2. The Veteran's right inguinal hernia is not recurrent, nor is there medical evidence that it is not well supported by truss or readily reducible. CONCLUSIONS OF LAW 1. The criteria for service connection for left inguinal hernia secondary to service-connected right inguinal hernia, have not been met. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for an increased rating for a right inguinal hernia in excess of 0 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.21, 4.1 - 4.7, 4.40, 4.45, 4.114, Diagnostic Code (DC) 7338 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in an April 2010 pre-adjudication letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for increased rating for his service-connected right inguinal hernia, including what he needed to provide and what would be obtained by VA. In an October 2010 pre-adjudication letter, the RO provided notice explaining what information and evidence was needed to substantiate a claim for service connection for left inguinal hernia, to include secondary service connection. The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matters on appeal, including the Veteran's service treatment records, VA treatment records and private medical records. The Veteran has not identified any outstanding medical evidence. An appropriate VA examination was conducted in connection with the claims. The examiner who conducted the October 2010 VA examination had access to and reviewed all the evidence in the claims file, recorded the Veteran's subjective complaints, and provided an opinion regarding whether there was a link between the Veteran's service-connected right side hernia and his left side hernia. The etiology opinion was supported by an adequate rationale based on the examiner's expertise and understanding of hernias as a medical professional. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate only if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices, the appellant has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Service Connection for Left Inguinal Hernia Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted on a direct basis for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a), service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 7 1 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination related to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. In evaluating the probative value of competent medical evidence, the Court has stated in pertinent part: "The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). A layperson is generally not capable of opining on matters requiring medical knowledge. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Veteran contends that he is entitled to service connection for his left side hernia secondary to his service-connected right side hernia. By way of background, the Veteran underwent a right inguinal hernia repair in 1964 during service. The RO granted service connection for the right side hernia in January 1985, at which time a 0 percent rating was assigned. The hernia recurred and was again repaired in 1967, 1977, and most recently in 1994. Dr. M.L, a surgical specialist, performed the most recent repair. In May 2010, following an examination of the Veteran, Dr. M.L. prepared a statement in which he noted that the Veteran complained only of occasional tenderness or discomfort, although in recent years he had been complaining of increased pain on his left side. Upon examination, the doctor found a small reducible left inguinal hernia and recommended surgery. Dr. M.L. opined that the Veteran's right inguinal hernia was related to his service in the military, but provided no opinion as to whether the left side hernia was caused by or related to the right side hernia. In June 2010, the Veteran had a left inguinal hernia repair and returned to see Dr. M.L. for a post-operative visit. The doctor stated there was no evidence of infection or recurrence of the Veteran's hernias and that he walked without difficulty. In October 2010, the Veteran submitted to a VA examination. The examiner reviewed the claims file and acknowledged the Veteran's left side hernia repair and his four right side hernia repairs. The examiner stated that the hernias had improved since the last repairs and there was currently no hernia present. He also noted that the Veteran was not undergoing any current treatment. The examiner concluded that the Veteran's left side hernia was not caused or aggravated by his service-connected right side hernia. He stated: "Review of medical literature documents that most indirect inguinal hernias are congenital, even though they may not become obvious until later in life. Increased abdominal pressure in association with reduced muscular tone in the groin area may ultimately lead to protrusion of intraabdominal contents into the sac, resulting in a clinically detectable hernia." In November 2010, the Veteran had a second post-operative visit with Dr. M.L. The doctor noted there was no recurrence of the hernias. The doctor provided no nexus opinion with respect to the Veteran's left inguinal hernia. The only evidence which supports the Veteran's claim that he currently has a re-occurring left side hernia secondary to his service-connected right side hernia are the allegations of the Veteran and his representative. The Board acknowledges the Veteran's contentions that hernias may be caused by increased pressure or fluid in the abdomen or heavy lifting, and that weakness can occur after injury or operations in the abdominal cavity. See August 2011 NOD. The Board also recognizes the Veteran's representative's statement that if the left hernia was congenital, the symptoms would have manifested at the same time as his right side hernia. See March 2013 Brief. However, the evidence of record does not demonstrate that the Veteran and his representative have specialized medical training or expertise or are otherwise competent to speak upon medical subjects. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (stating "[w]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). The Board finds the October 2010 VA examination report to be both probative and persuasive. The examination report was based on a review of all the evidence of record, a physical examination of the Veteran, and consideration of the Veteran's self-reported history. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). The evidence from Dr. M.L., while competent, provides no guidance on the question of whether the left side hernia was caused by or aggravated by the right side hernia. Given this, the Board finds that the competent evidence of record is against the claim, there is no doubt to be resolved, and the claim must be denied. III. Increased Rating for a Right Inguinal Hernia Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.S.C.A. § 1155; 38 C.F.R., Part 4 (2012). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. §4.3. The primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 7338, a small, reducible hernia, a hernia without true hernia protrusion, or a hernia that is preoperative but remediable is rated as noncompensable or 0 percent. 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 that is not well supportable by a truss or that is 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, DC 7338. The Veteran contends that a rating in excess of 0 percent is warranted because he has a recurrent hernia that is reduced and supported by a truss and a belt. Upon careful review of the evidence of record and in consideration of the Veteran's lay testimony of his current symptoms, the Board finds that the Veteran is not entitled to a rating in excess of 0 percent under DC 7338 for his right inguinal hernia because no evidence of record reflects the existence of such hernia at any time during the appeal period. See 38 C.R.F. § 4.114. See May 2010 Statement of Dr. M.L. ("no evidence of a recurrent hernia is noted on the right side"); October 2010 VA Examination (the examiner concluded there is no hernia currently present). The Veteran conceded there is no current hernia in his July 2012 VA Form 9, and no evidence to the contrary has been presented during the appeals period. Therefore, a compensable rating for the right side hernia is not warranted. The level of impairment due to the Veteran's right side hernia has been stable throughout the appeals period, and has never been worse than what is warranted for a 0 percent rating. Therefore, the application of staged ratings is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether an extra-schedular rating is appropriate has also been considered. See Barringer v. Peake, 22 Vet. App. 242 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). Factors for consideration in determining whether referral for an extra-schedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, 22 Vet. App. 111. In the present case, the Veteran contends that because of his hernias he is "no longer able to work as a driver/salesman" and instead was "forced to take an inside desk job" with significantly lower pay that negatively affected his retirement pension. See July 2012 Form 9. While the Board sympathizes with the Veteran, there is no evidence that the Veteran has missed significant amounts of work due to his service-connected hernia and his symptoms are within those contemplated by the rating schedule. Therefore, further consideration of an extra-schedular rating is not warranted. Whether the Veteran's right side hernia results in functional loss has also been reviewed. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Veteran has complaints of pain and Dr. M.L. reported in 2010 that the Veteran noted "occasional tenderness or discomfort" on the right inguinal region. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In the absence of functional impact, the presence of pain is not compensable. Although the evidence shows that the Veteran does require the use of a truss and has limitation of daily activities, such as heavy lifting or riding a bike, the actual functional impairment shown by the pertinent medical findings discussed above do not indicate that his functional impairments are tantamount to the criteria required for a compensable rating. See July 2010 Statement from Veteran's Wife (regarding limitation of daily activities). Lastly, the Board has considered whether an inferred claim for a maximum rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges the Veteran's contention that he had to take a pay cut after retirement and work at a desk job. However, he has continued to work throughout the appeal period and has not alleged that he is unable to remain employed. Thus, a claim for TDIU is not raised by this appeal. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the probative evidence is against the claims and there is no doubt to be resolved, 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. 49 (1990). ORDER 1. Service connection for left inguinal hernia is denied. 2. Entitlement to a schedular rating in excess of 0 percent for right inguinal hernia is denied. REMAND When there has been an adjudication of a claim and an NOD is filed, the claimant is entitled to an SOC. See 38 C.F.R. § 19.26. Thus, a remand for issuance of an SOC on the issue of entitlement to an initial rating for a post-surgical right hernia repair scar in excess of 10 percent is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). This issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Issue an SOC, containing all applicable laws and regulations, on the issue of entitlement to an initial rating for a post-surgical right hernia repair scar in excess of 10 percent. The Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran perfects an appeal as to this issue within the applicable time period, should the issue be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs