Citation Nr: 1335424 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-13 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for left inguinal hernia status post-incisional repair with residual scar, currently evaluated as ten percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active military duty from October 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the Veteran had also filed a secondary claim for "residual scarring with nerve damage." However, this is already contemplated in the current disability rating, as discussed below. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. FINDINGS OF FACT The left inguinal hernia status post-incisional repair with residual scar is manifested by pain in the groin region, without recurrent hernias, nerve impairment, or painful or unstable scar. CONCLUSION OF LAW The criteria for a rating in excess of ten percent for left inguinal hernia status post-incisional repair with residual scar has not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.6, 4.7, 4.114, Diagnostic Code 7338, 4.118, Diagnostic Codes 7801-7805, 4.124a, Diagnostic Code 8730 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has satisfied its duties to notify and assist the Veteran in this case. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including degree of disability and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Veteran was advised in May 2010, prior to the initial adjudication in September 2010, of the evidence and information necessary to substantiate his increased rating claim. This letter also advised the Veteran of the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. VA's duty to assist the Veteran includes assisting him in the procurement of service records and pertinent treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All identified, available VA and non-VA records have been obtained and considered. Service treatment records are also associated with the claims file. There is no indication that the Veteran receives any disability benefits from the Social Security Administration. Further, there is no indication or argument that any pertinent medical records remain outstanding. The Veteran was also afforded VA examinations concerning his claimed disability in June 2010 and April 2013. These examinations were thorough and included appropriate testing, and there is no argument or indication that they were inadequate for adjudication purposes. Therefore, the medical evidence is sufficient for a fair adjudication. In the circumstances of this case, a remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision on the merits of his claim at this time. II. Analysis The Veteran underwent surgery to repair a left inguinal hernia in 1965. He was granted service connection in 2002. The left inguinal hernia status post-incisional repair with residual scar has been assigned a ten percent rating effective since May 2000. He sought an increased rating in May 2010, leading to the current appeal. He contends that he is entitled to a rating in excess of ten percent due to increased pain. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The left inguinal hernia status post-incisional repair with residual scar is currently rated under Diagnostic Code 7338. Under Diagnostic Code 7338, a noncompensable rating is warranted where the inguinal hernia is small, reducible, or without true hernia protrusion, or where it is not operated, but remediable. A ten percent rating is warranted where the inguinal hernia is postoperative recurrent, readily reducible and well supported by truss or belt. A thirty percent evaluation is warranted where the hernia is postoperative recurrent, or unoperated irremediable, not well supported by a truss, or not readily reducible. A sixty percent evaluation is warranted for a large, postoperative, recurrent hernia that is not well supported under ordinary conditions and not readily reducible, when considered inoperable. 38 C.F.R. § 4.114. The Veteran's VA examinations and treatment records indicate that he does not have a recurrent inguinal hernia. See, e.g., April 2013 VA examination. At his June 2010 VA examination, the Veteran reported soreness and aching near the surgical site. During a VA surgery consultation from that month, he described having throbbing, non-radiating pain that he rated five on a scale of ten. The Veteran also had a surgery consultation in June 2011, where his discomfort was described as unremitting and not severely acute. In treatment records from August 2012, the Veteran reported dull, aching pain that he rated as four on a scale of ten. The Veteran reported a continued episodic dull ache in his left groin region at the April 2013 examination. The Board finds that the criteria for a rating above ten percent under Diagnostic Code 7338 have not been satisfied. The Veteran does not have a current hernia. None of the criteria for a thirty percent rating or higher apply to his symptoms, inasmuch as he does not have a small hernia which is postoperative recurrent or unoperated irremediable, and not well supported by a truss, or not readily reducible. See 38 C.F.R. § 4.114. The initial July 2002 rating decision granted service connection for left inguinal hernia repair with ileo-inguinal nerve entrapment. Pursuant to Schafrath and due to the pain reported by the Veteran, the Board will consider the Veteran's claim under applicable alternate rating codes. Under Diagnostic Code 8730, neuralgia of the ilio-inguinal nerve warrants a noncompensable rating for mild or moderate incomplete paralysis, and a maximum rating of ten percent for severe incomplete paralysis to complete paralysis. 38 C.F.R. § 4.124. The words "mild," "moderate," and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran has consistently reported pain in his left groin region, and he is competent to report such symptoms. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, there was no indication of nerve entrapment on the June 2010 VA examination. Neurological testing was within normal limits. Any neuralgia present results in significantly less than severe incomplete paralysis of the affected nerve(s). On VA examination in April 2013, there was no recurrence of hernia pathology or indication of the need for a supporting belt. Other than pain, the area was asymptomatic. The Board finds that the current rating under Diagnostic Code 7338 contemplates the Veteran's groin pain. Therefore, the Veteran is not entitled for a higher rating under an alternate rating code. The Veteran is also not entitled to a separate compensable evaluation for his scar. The Veteran has consistently denied any pain from the scar, as opposed to the groin in general. Further, at his April 2013 VA examination, the scar was evaluated as eight centimeters long, smooth, nontender, and lacking induration or skin restriction. It was well-healed and does not meet or approximate the criteria for a compensable rating. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Accordingly, the Board finds that a preponderance of the evidence weighs against the Veteran's increased rating claim. Staged ratings are not warranted, as the Veteran's symptomatology has been relatively stable throughout the course of the appeal. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. at 509-10. The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The Veteran essentially complains pain in his left groin region, which is addressed by the rating schedule, as discussed above. The rating criteria reasonably describe his disability level and symptomatology. As such, the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, it is unnecessary to determine whether there are any related factors such as hospitalization or interference with employment. The Board also notes that a claim for entitlement to a total disability rating based on individual unemployability due the Veteran's service-connected disability cannot be inferred, inasmuch as there is no evidence of unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Finally, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against a rating in excess of ten percent for the Veteran's residuals of hernia disability. As such, the benefit of the doubt doctrine does not apply, and this claim must be denied. 38 C.F.R. § 4.3 ORDER A rating in excess of ten percent for left inguinal hernia status post-incisional repair with residual scar is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs