Citation Nr: 1334074 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-30 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial compensable rating for residuals, status-post fracture of the first metacarpal joint of the left hand. 2. Entitlement to an initial compensable rating for residuals, status-post bilateral inguinal hernia repair. 3. Entitlement to an initial compensable rating for a scar, status-post right inguinal hernia repair. 4. Entitlement to an initial compensable rating for a scar, status-post left inguinal hernia repair. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active service from December 2001 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which granted, in pertinent part, the Veteran's claims of service connection for residuals, status-post fracture of the first metacarpal joint of the left hand, for residuals, status-post bilateral inguinal hernia repair, for a scar, status-post right inguinal hernia repair, and for a scar, status-post left inguinal hernia repair, and assigned zero percent ratings for each of these disabilities. In July 2006, the Veteran notified VA that he had moved to the jurisdiction of the RO in San Diego, California. That facility retains jurisdiction in this appeal. Although the Veteran requested a videoconference Board hearing in December 2007, he failed to report for this hearing when it was scheduled in March 2010. Thus, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). When this case was before the Board in March 2011, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action. The Board notes that in addition to a paper claims file, there is an electronic "Virtual VA" file that was also reviewed in order to ensure thorough analysis of the evidence of record. FINDINGS OF FACT 1. The Veteran has full range of motion in his left thumb. 2. The Veteran's residuals, status-post bilateral inguinal hernia repair, are manifested by objective evidence of mild tenderness and subjective complaints of pain; but have shown no evidence of recurrence. 3. The scar, status-post right inguinal hernia repair, is nontender and causes no pain; it is not unstable and does not cover a minimum scarred area of six square inches. 4. The scar, status-post left inguinal hernia repair, is nontender and causes no pain; it is not unstable and does not cover a minimum scarred area of six square inches. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for residuals, status-post fracture of the first metacarpal joint of the left hand, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5228 (2012). 2. The criteria for an initial compensable rating for residuals, status-post bilateral inguinal hernia repair, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7338 (2012). 3. The criteria for an initial compensable rating for a scar, status-post right inguinal hernia repair, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2008); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7 (2012). 4. The criteria for an initial compensable rating for a scar, status-post left inguinal hernia repair, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2008); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluations assigned following grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this regard, the Board notes that service treatment records (STRs) and pertinent post-service records have been associated with the claims folder. The Veteran was also afforded an adequate VA-contracted examination in August 2006, the details of which are outlined below. The Board notes that the Veteran failed to report for an examination scheduled for May 2011 in compliance with the March 2011 Board remand, despite being advised of the examination. He has not explained why he failed to appear for the examination or requested that the examination be rescheduled. The Court has held that VA's duty to assist a veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims. The Board also is unaware of any such outstanding evidence. Therefore, the Board is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claims. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. General Disability Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. At the outset, the Board notes that the Veteran specifically contended on his September 2007 substantive appeal (VA Form 9) that the VA examiner who had conducted his August 2006 VA-contracted examination had not reported his medical history accurately. The Veteran's service representative also specifically contended in a January 2011 Appellant's Brief that the Veteran should be scheduled for an updated VA examination. As noted above, the Board remanded the case in March 2011, instructing that the Veteran be afforded a VA examination. However, the Veteran failed to appear for a VA evaluation in May 2011. The evidence available to evaluate the Veteran's claims has been significantly affected by his failure to undergo VA examination. In accordance with 38 C.F.R. § 3.655 (2013), therefore, the Board will decide the claims based on the evidence currently of record. I. First Metacarpal Joint of the Left Hand The Veteran is currently service connected for residuals, status-post fracture of the first metacarpal joint of the left hand, and receives a noncompensable rating under 38 C.F.R. § Diagnostic Code 5228. Under Diagnostic Code 5228, limitation of motion of the thumb provides a non-compensable rating (zero percent) for a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent rating for a gap of between one to two inches (2.5 cm to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and a 20 percent rating for a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. The ratings are the same regardless of whether the hand affected is the major or minor. The Veteran was afforded a VA-contracted examination in August 2006 in which he reported injury to the left hand, first metacarpal, in April 2006; he was diagnosed as having a fracture. He reported continuing to experience intermittent pain on the left thumb, occurring once a month for about one hour. Physical examination showed that he could make a tight fist bilaterally without difficulty; hand strength was normal; left hand had mild tenderness on the left first metacarpal; there was no evidence of heat, redness, swelling, effusion, drainage, abnormal movements, instability or weakness. There was no evidence of ankylosis. There was full range of motion that was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The distance between the tip of the thumb to tip and base of all fingers was 0 centimeters. The Veteran submitted a notice of disagreement in December 2006 in which he stated that the movement of his left thumb was slightly restricted with slight pain at the base of the thumb. As described, the Veteran has not demonstrated any significant impairment from his left thumb as he has demonstrated full range of motion in his thumb at the VA-contracted examination. The Board finds that the evidence of record does not support a compensable rating. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, as described the evidence of record has not shown that his thumb pain has sufficiently limited range of motion so as to warrant a compensable rating for the thumb. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determination above the Board has considered the lay evidence offered by the Veteran in the form of correspondence to VA in which it has generally been asserted that the Veteran is entitled to higher disability rating. Although the Veteran is competent to report his own overall symptomology, and in affording those statements full credibility, they do not show that his impairment more closely approximates the schedular criteria for the next higher evaluation. In reaching its decision, the Board has considered the benefit-of-the-doubt rule; but has determined that it does not apply in this case because the preponderance of the evidence is against claim. II. Residuals, Status-Post Bilateral Inguinal Hernia Repair The Veteran is currently service connected for the residuals, status-post bilateral inguinal hernia repair, and receives a noncompensable rating under 38 C.F.R. § Diagnostic Code 7338. Under this code, a noncompensable disability rating is warranted for inguinal hernias that are small, reducible, or without true hernia protrusion. A noncompensable disability rating is also warranted for inguinal hernias that are not operated, but remediable. A 10 percent disability rating is warranted for postoperative inguinal hernias that are recurrent, readily reducible, and well supported by a truss or belt. A 30 percent disability rating is warranted for small recurrent postoperative or unoperated irremediable inguinal hernias that are not well supported by truss, or not readily reducible. A maximum 60 percent disability rating is warranted for large, recurrent postoperative inguinal hernias that are not well supported under ordinary conditions and are not readily reducible, when considered operable. The note following Diagnostic Code 7338 provides that a 10 percent disability rating to be added 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 a compensable degree. The Veteran was afforded a VA-contracted examination in August 2006 in which he reported a history of bilateral inguinal herniorrhaphy with residual pain on the bilateral inguinal areas since the surgeries. The pain occurred when he lies flat, and he had difficulty with lifting heavy objects. Physical examination showed no evidence of recurrence of the hernia; however, there was mild tenderness noted in the bilateral inguinal area by gentle palpation. There was no evidence of rebound, guarding, or masses. The Veteran submitted a notice of disagreement in December 2006 in which he stated that the residuals of his hernia operations were persistent, with abdominal pain present while standing, walking and lifting (not while lying prone.) As described, the Veteran has not demonstrated any significant impairment from his residuals, status-post bilateral inguinal hernia repair, as examination showed no recurrence. The Board finds that the evidence of record does not support a compensable rating. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned rating. See Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in arriving at the determination above the Board has considered the lay evidence offered by the Veteran in the form of correspondence to VA in which it has generally been asserted that the Veteran is entitled to higher disability rating. Although the Veteran is competent to report his own overall symptomology, and in affording those statements full credibility, they do not show that his impairment more closely approximates the schedular criteria for the next higher evaluation. In reaching its decision, the Board has considered the benefit-of-the-doubt rule; but has determined that it does not apply in this case because the preponderance of the evidence is against claim. III. Scars, Status-Post Right and Left Inguinal Hernia Repair The Veteran is currently service connected for scars, status-post right and left inguinal hernia repair, and receives noncompensable ratings for both under 38 C.F.R. § Diagnostic Code 7802. The evaluation of skin disabilities are governed under 38 C.F.R. § 4.118. The criteria were amended effective October 23, 2008, but the amendments apply only to claims filed on or after that date. As the claim which is the subject of this appeal was filed in July 2006, the older criteria apply. 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118 (2009)). The Veteran was afforded a VA-contracted examination in August 2006 in which physical examination showed bilateral inguinal area with 5 x 1 centimeter, non-disfiguring, depressed scars. The scars were blank with the skin, soft, depressed, and nontender, with no evidence of ulceration, adherence, instability, inflammation, edema, or tissue loss. The scars were less than six square inches; there was no evidence of keloid formation or induration. The scars were not hyperpigmented; there was no evidence of abnormal texture. The Veteran submitted a notice of disagreement in December 2006 in which he stated that his range of motion was slightly limited due to the scars, however there was no pain. The applicable criteria provide several possible alternative Diagnostic Codes for application. Codes 7801 and 7802 would require a minimum scarred area of six square inches before a compensable evaluation is warranted; increased evaluation would require involvement of a square foot of surface area. No examiner has described the scars as approaching anywhere near this size; doctors report the scars are 5 x 1 centimeter. Code 7803 would require that the scars' surface be found to be unstable. There are no objective findings or subjective reports indicating that the skin covering the scars is prone to sloughing, peeling, or any other form of instability. Code 7805, which provides that scars may be rated based upon the limitation of function of the affected part, has been considered. The Veteran does complain of slightly limited range of motion due to the scars. However, no doctor has attributed these complaints to the scars, and the Veteran lacks the specialized knowledge and training to provide an etiological opinion in a case such as that here. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Code 7804, grants a 10 percent evaluation for superficial scars that are painful on examination. 38 C.F.R. § 4.118 (2008). The Veteran has reported that his scars are nontender and cause no pain. The Board finds that the evidence of record does not support compensable ratings. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the scar disabilities warranted more than the assigned ratings. See Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in arriving at the determination above the Board has considered the lay evidence offered by the Veteran in the form of correspondence to VA in which it has generally been asserted that the Veteran is entitled to higher disability ratings. Although the Veteran is competent to report his own overall symptomology, and in affording those statements full credibility, they do not show that his impairment more closely approximates the schedular criteria for the next higher evaluations. In reaching its decision, the Board has considered the benefit-of-the-doubt rule; but has determined that it does not apply in this case because the preponderance of the evidence is against claim. Additional Considerations The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) (1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disabilities herein discussed are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disabilities would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. 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. Here, there has been no assertion of unemployability alleged, and the Board thus finds that Rice is inapplicable to this case. ORDER Entitlement to an initial compensable rating for residuals, status-post fracture of the first metacarpal joint of the left hand, is denied. Entitlement to an initial compensable rating for residuals, status-post bilateral inguinal hernia repair, is denied. Entitlement to an initial compensable rating for a scar, status-post right inguinal hernia repair, is denied. Entitlement to an initial compensable rating for a scar, status-post left inguinal hernia repair, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs