Citation Nr: 1330400 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-13 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased (compensable) rating for left inguinal hernia repair. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased rating for left inguinal hernia repair. FINDINGS OF FACT 1. Residuals of a left inguinal hernia repair were not productive of a recurrent hernia. 2. Residuals of a left inguinal hernia repair by analogy, are productive of pulling pain on attempting work or aggravated by movements of the body, no more than moderate in degree. CONCLUSION OF LAW The criteria for a 10 percent rating, and no more, for residuals of a left inguinal hernia repair have been met. 38 U.S.C.A. §§ 1155 , 5103(a), 5103A (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 7301-7338 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by letter sent to the Veteran in April 2008. This letter fully addressed the notice elements. The letter advised the Veteran of the information required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter informed the Veteran of how VA determined disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006) aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseski v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. This notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The RO associated the Veteran's service treatment records, and VA treatment records with the claims file. No outstanding evidence has been identified. The Veteran was afforded a VA examination in June 2008. The Board finds the VA examination report was thorough and adequate upon which to base a decision with regard to the Veteran's residuals, left inguinal hernia repair claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. Further, the Veteran was provided an opportunity to set forth his contentions at a hearing before the Board. He declined. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet.App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002). Increased Rating Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2013). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). When the appeal arises from an initial rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may also be appropriate in increased rating claims, as in this case, if distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, an increased rating for an already established service-connected disability is at issue, such as in this case, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United State Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). By rating decision of October 2005, service connection for left inguinal hernia repair was granted. A noncompensable rating was awarded, effective June 2005. In March 2008, the Veteran filed a claim for an increased rating. By rating decision of September 2008, the noncompensable rating was continued. This rating has been in effect since that time. The Veteran asserts that his residuals, left inguinal hernia are more severe than the current evaluation reflect. He claims that he has ongoing pulling pain when lifting and when he turns over in bed. He stated that he was told by his physician that the pulling was the stitches and mesh used to repair his hernia, which is no longer performed in that manner. He maintains that he has the pulling pain on a daily basis. The Veteran's left inguinal hernia repair disability is rated under 38 C.F.R. § 4.114, DC 7338 for inguinal hernia. After a review of the claims file, the Board concludes that a compensable rating is not warranted. First, the clinical evidence of record does not indicate that the Veteran has had a recurrent left inguinal hernia since his surgery in 2002. Instead, his symptomatology is characterized by pain or soreness in his left inguinal area. He underwent a VA examination in June 2008. He related pain at the site of his hernia repair. His pain occurs with lifting items, doing strenuous work, or exercise. The pain was described as a sharp, pulling pain. He notices it more with activities involving his abdominal muscles. It occasionally wakes him up at night when turning in bed. He maintains it has a mild effect on his shopping, traveling, and chores, and moderate effect on his exercising and participation in sports. Since the Veteran's hernia has not recurred, the need to consider the ease of reducibility is not applicable. Moreover, no treatment records nor his statements reflect the need to wear a truss or belt for abdominal support. Therefore, based on the evidence, the Board concludes that a compensable rating is not warranted on this basis. In contrast, the Board finds that the Veteran's inguinal hernia repair may also appropriately be evaluated under the criteria for rating adhesions of the peritoneum contained in 38 C.F.R. § 4.114 of the Rating Schedule. DC 7301. Diagnostic Code 7301 warrants a noncompensable rating for adhesions of the peritoneum that are mild in disablement. A 10 percent rating is warranted which is moderate in disablement with symptoms of pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is warranted which is moderately severe in disablement with symptoms of partial obstruction manifested by delayed mobility of barium meal and less frequent and less prolonged episodes of pain. Based on the Veteran's complaints of pulling pain, especially when performing activities using the abdominal muscles and problems with lifting and carrying, resolving all reasonable doubt in the Veteran's favor, a 10 percent rating for pain, and no more, is warranted by analogy for residuals, left inguinal hernia repair. Symptoms moderately severe in degree, have not been shown. The Board has considered the Veteran's statements that his residuals, left inguinal hernia repair disability is worse. He asserted, in essence, that he warranted an increased rating for this disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which 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 going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran has not been shown to possess the competence to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's residuals, left inguinal hernia repair disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination report) directly address the criteria under which the Veteran's residuals, left inguinal hernia repair disability is evaluated. The Board has also considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The evaluation of the Veteran's residuals, left inguinal hernia repair disability was applied to the applicable rating criteria and case law. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's residuals, left inguinal hernia repair disability includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis for this disability is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 10 percent rating for left inguinal hernia repair, and no more, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs