Citation Nr: 1335484	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  08-32 748	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a compensable rating for left inguinal hernia.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

The Veteran served on active duty from June 1976 to June 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In May 2010, the Veteran presented testimony before the undersigned Veterans Law Judge at a Travel Board hearing held at the RO.  A transcript of that hearing testimony is on file. 

The Board remanded the appeal in September 2010 for additional development which has since been completed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

In addition to the paper claim file, there is a paperless claim file associated with the Veteran's claim on Virtual VA.  A review of the documents on Virtual VA reveals that they are either duplicative of the evidence in the paper claim file or are irrelevant to the issue on appeal.

The issues of entitlement to service connection for urinary frequency, to include as secondary to left and/or right inguinal hernias and entitlement to a separate, compensable rating for a scar associated with a service-connected post-operative right inguinal hernia repair have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  



FINDING OF FACT

The Veteran's post-operative left inguinal hernia is shown to be manifested by some pain and discomfort, and a well-healed scar, but there is no objective evidence of a recurrent hernia.


CONCLUSION OF LAW

The criteria for a compensable evaluation for a left inguinal hernia have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7338 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013).  The notice requirements regarding entitlement to a higher rating were accomplished in a letter sent to the Veteran in November 2007 prior to the initial rating decision.  This letter included notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. 

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's VA and private medical records have been associated with the claim file.  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  

The Veteran was provided with VA examinations in March 2008 and October 2010.  The examination reports are adequate for evaluation purposes because the examiners conducted a clinical evaluation and described the Veteran's disability in sufficient detail so that the Board's evaluation is an informed determination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The Veteran has not asserted that his disability has worsened in severity since the last VA examination and the Board notes that a remand is not required solely due to the passage of time since the last examination.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). 

In May 2010, the Veteran presented testimony before the undersigned Veterans Law Judge.  The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on the Veterans Law Judge conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the May 2010 hearing, the undersigned clarified the issue on appeal and inquired as to the nature and severity of the Veteran's symptoms.  While the undersigned did not specifically seek to identify pertinent evidence not currently associated with the claim; this was not necessary.  The Veteran volunteered his treatment history and possible sources of additional evidence.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has identified any prejudice in the conduct of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant.  

Analysis

The Veteran contends that he is entitled to a compensable disability evaluation for the residuals of his left inguinal hernia repair. 

Disability evaluations 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 entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Any reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

Diagnostic Code 7338 provides the criteria for rating an inguinal hernia.  Under this Code, a zero percent evaluation is warranted for an inguinal hernia not operated, but remediable; or small, reducible, or without true hernia protrusion.  A 10 percent evaluation contemplates a postoperative recurrent hernia, readily reducible and well-supported by a truss or belt.  A 30 percent evaluation is in order for a small, postoperative recurrent or unoperated irremediable, inguinal hernia, not well supported by truss or not readily reducible.  A 60 percent evaluation is assigned for a large postoperative and recurrent inguinal hernia, not well supported under ordinary conditions and not readily reducible, when considered inoperable.  See 38 C.F.R. § 4.114, DC 7338.

At a VA examination in March 2008, the Veteran reported pain and discomfort over his left groin.  He denied any history or symptoms of infection.  The Veteran also complained of frequent urination in the daytime and in the nighttime.  Physical examination revealed the presence of a bilateral inguinal herniorrhaphy scar which was well-healed.  There was no neuroma formation, and the scar was blended with the Veteran's skin color.  There was mild to moderate tenderness on palpation over the groin area, but no recurrence of the hernia.  The VA examiner noted that the Veteran underwent a left inguinal hernia repair in February 2003 and the hernia repair was a success.  The examiner indicated there was no recurrence of the hernia.  The examiner provided a diagnosis of left inguinal hernia repair in 2003; the Veteran is symptomatic with pain and discomfort, but there is no sign of infection, inflammation, or neuroma formation.  The examiner also diagnosed benign prostatic hypertrophy (BPH) causing frequency of urination and dysuria.

At a hearing held in May 2010, the Veteran testified that he had discomfort at the site of his hernia repair with heavy lifting, working, prolonged standing, and cold weather.  He also indicated that he felt pain where the "screen" was located, and that it radiates down into his genitalia.  The Veteran clarified that it is not his skin that hurts or is tender, but the area underneath his skin, where the "screen" is.  He also reported having urinary difficulty, to include frequent urination and an inability to fully empty his bladder, which he believed was related to his left inguinal hernia surgery.  In response to questioning by the undersigned about whether his left inguinal hernia surgical scar had healed, the Veteran stated, "Yes, it's pretty much healed."  When questioned further as to whether the scar was "pretty well healed," the Veteran responded "Yeah."

At a VA examination in October 2010, the Veteran denied pain in the inguinal area.  He reported symptoms of frequent urination at night and during cold weather which he believed was caused by his hernia repair.  On physical examination, careful palpation of the left groin (transcutaneously and by digital invagination of the scrotum) revealed no recurrence of the left inguinal hernia.  The examiner determined that further diagnostic and clinical tests were unnecessary and provided a diagnosis of no evidence of recurrence of the left inguinal hernia repaired in February 2003 by the Lichtenstein technique.  The examiner also explained why, in his opinion, the Veteran's reported frequent urination was not caused by his hernia repair.  The examiner noted that the Veteran had hernia repair via the Lichtenstein technique and provided a brief description of that surgical procedure.  The examiner indicated that based on his experience, and the procedure used to repair the Veteran's left inguinal hernia, the frequent urination was likely caused by BPH.  

VA treatment records dated from October 2006 to the present do not show any clinical findings of recurrence of the left inguinal hernia.  These records do show the Veteran's complaints of increased urinary frequency and difficulty urinating from at least 2001, with clinical assessments of BPH.  There was no association made between the Veteran's left inguinal hernia and the diagnosis of BPH.

On the Veteran's VA Form 9, Substantive Appeal submitted in October 2008, he reported that he was hit by a sports utility vehicle in 2001 and this caused his hernia to rupture and/or get much larger.  He also indicated that while in the hospital following the accident, he had to urinate every hour.  

A private medical record submitted in September 2009 shows a clinical assessment of "H/O BPH." On the back of this record, the Veteran wrote that the 2001 accident "ruptured his hernia and made it larger."  He indicated that the hernia repair surgery in February 2003 did not relieve his symptoms of frequent urination and difficulty voiding.

Based on the evidence, a compensable disability rating for the service-connected left inguinal hernia is not warranted.  In order to warrant a compensable rating of 10 percent, there must be (at a minimum) evidence of a recurrent inguinal hernia that is readily reducible and well-supported by a truss or belt.  All of the clinical findings in this case, including the VA treatment records and VA examination reports, indicate there is no actual recurrence of the left inguinal hernia.  As there is no evidence of a recurrent left inguinal hernia, a compensable evaluation is not warranted.  

Additionally, the Board finds that a compensable rating is not available for the Veteran's post-surgical scar that was noted during the March 2008 VA examination.  The scar was not noted to be deep, unstable, tender or painful on objective examination, or limiting motion or function in any way.  The examiner described the scar as "well-healed."  Additionally, the Veteran testified at his hearing that his scar was "well-healed."  Such findings do not warrant the assignment of a separate, compensable rating for the left inguinal hernia scar under the criteria for rating the skin.  See 38 C.F.R. § 4.118, DC 7801-7805 (2007).  

Finally, although the Veteran asserts that he has urinary difficulty as a result of his left inguinal hernia, both VA examiners indicated that the genitourinary complaints are manifestations of BPH and are unrelated to the hernia or the hernia repair.  The cumulative medical evidence otherwise fails to show any clinical findings of genitourinary abnormalities associated with the Veteran's hernia.  While the Veteran is competent to describe his symptoms, the clinical findings of trained healthcare professionals are of greater probative weight than the general lay assertions of the Veteran with regard to the question of an association between the hernia and urinary difficulties.  As such, the Veteran's subjective symptoms, which have not been related to his service-connected hernia surgery by the medical evidence, do not warrant a higher evaluation under an applicable diagnostic code.  

The Veteran's testimony regarding pain and discomfort in the area of his left inguinal hernia is credible, competent and probative and the Board does not doubt that he experiences some discomfort with respect to this service-connected disability.  However, the medical evidence is more probative as to whether the criteria for a higher rating are met.  As discussed in detail above, the medical evidence shows that his left inguinal hernia has not recurred and thus, does not meet the criteria for a compensable rating for the entire period of time covered by this claim.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990).

The Board has considered whether an extraschedular rating is warranted.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  In this case, the rating criteria contemplate the Veteran's left inguinal hernia disability.  The Veteran's left inguinal hernia is productive of some pain and discomfort, but without actual recurrence of the hernia.  These manifestations are contemplated in the respective applicable rating criteria.  Referral for an extraschedular rating is not warranted.

Finally, the Board has contemplated whether consideration of a total disability rating based on individual unemployability (TDIU) is warranted.  The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As there is no evidence of unemployability due to the Veteran's left inguinal hernia disability, the question of entitlement to a TDIU is not raised.


ORDER

A compensable evaluation for left inguinal hernia is denied.



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs