Citation Nr: 1337689	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  09-45 445	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an increased (compensable) rating for service-connected gastroesophageal reflux disease (GERD) status post partial fundoplication.

2.  Entitlement to an initial rating greater than 10 percent for service-connected left ilioinguinal nerve neuralgia.

3.  Entitlement to extra-schedular consideration under 38 C.F.R. § 3.321(b) for service-connected left ilioinguinal nerve neuralgia status post spinal cord stimulator implant.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from September 1980 to June 2008.

This appeal to the Board of Veterans' Appeals (Board) on appeal from rating decisions by Regional Offices (ROs) of the Department of Veterans Affairs (VA).

The Board observes that the Veteran had previously perfected appeals as to issues involving higher ratings for service-connected hypertension, migraine headaches, and hemorrhoids, and he had initiated an appeal with respect to the initial rating assigned for right ilioinguinal nerve neuralgia.  In June 2013, the Veteran limited his appeal to the claims for higher ratings for the disabilities noted on the title page.  See VA Form 9 (Appeal to Board of Veterans' Appeals), Box 9B, received in June 2013.  In an Informal Hearing Presentation (IHP) dated October 2013, the Veteran's representative concurred in the RO's certification of the issues on appeal.   For reasons expressed 

A review of the Virtual VA electronic records storage system reveals additional documents which are not associated with the paper claims file.  With the exception of the October 2013 IHP by the Veteran's representative at the National level, the RO has considered all evidence in its adjudications.

The issues of entitlement to a compensable rating for service-connected GERD status post partial fundoplication and entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for service-connected left ilioinguinal nerve neuralgia status post spinal cord stimulator implant are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's service-connected left ilioinguinal nerve neuralgia is assigned a 10 percent rating, the maximum authorized under Diagnostic Code (DC) 8530.


CONCLUSION OF LAW

The claim for an initial schedular rating greater than 10 percent for left ilioinguinal nerve neuralgia is without legal merit.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, DC 8530 (2013); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process Considerations

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, the Veteran is challenging the initial evaluation assigned following a grant of service connection.  In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006).  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.

Additionally, as held below, the Board denies the Veteran's claim for entitlement to an initial rating greater than 10 percent for service-connected left ilioinguinal nerve neuralgia as a matter of law as the maximum schedular rating has been assigned.  As addressed in the remand, below, the Board finds that the criteria for referral of this claim to the Director, Compensation and Pension for extraschedular consideration under 38 C.F.R. § 3.321(b) have been met.  Thus, as there is no legal basis for a higher schedular rating under DC 8530, there is no further duty to assist the Veteran in developing the claim for a higher initial rating under DC 8530.  VAOPGCPREC 5-2004 (June 23, 2004).

II.  Analysis

The Veteran seeks an initial rating greater than 10 percent for his service-connected left ilioinguinal nerve neuralgia.  He has a history of two left inguinal hernia repairs resulting in left ilioinguinal nerve neuralgia.  His treatment has included epidural steroid injections (ESIs) and implantation of a dual-lead percutaneous advanced neuromodulation system (ANS) Octrode spinal cord stimulator implant (spinal cord stimulator implant).

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  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 the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  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.

If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).  Reasonable doubt as to the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

Separate disability 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.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's service-connected left ilioinguinal nerve neuralgia is currently rated 10 percent disabling under 38 C.F.R. § 4.124a, DC 8530.  Under DC 8530, a noncompensable rating is assigned for mild or moderate paralysis of the ilioinguinal nerve, and a maximum 10 percent rating is assigned for severe to complete paralysis of the ilioinguinal nerve.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 

The Board finds that DC 8530 is appropriate as the Veteran has been diagnosed with injury to his left ilioinguinal nerve.   See VA Compensation and Pension (C&P) examination dated April 2010.  This is the maximum available rating under DC 8530.

Notably, the Veteran has been separately rated under DC 7338 for status post repair of bilateral inguinal hernias and umbilical hernia with residual scars, which deals specifically with inguinal hernias.  See RO rating decision dated July 2008.  This rating represents a recurrent postoperative inguinal hernia which is readily reducible and well supported by truss or belt.  See 38 C.F.R. § 4.114, DC 7338.  In the Introduction, above, the Board has referred to the RO a recently raised claim of entitlement to a compensable rating for left hernia surgery scar residuals.

The Veteran also asserts his entitlement to a compensable rating for a spinal cord stimulator implant scar.  This claimed condition has not been service-connected, and has also been referred to the RO for appropriate action.

Furthermore, the RO has provided a separate 10 percent rating for right ilioinguinal nerve neuralgia under DC 8530.  See RO rating decision dated July 2010.  The Veteran has not appealed this issue to the Board.

Thus, the Board finds that the issue on appeal is limited to a claim for a rating greater than 10 percent for left ilioinguinal nerve neuralgia.  The Board concludes that the Veteran is appropriately rated under DC 8530 and, given the separately rated other disabilities discussed above, the Board can identify no other diagnostic code which would be more appropriate.  The Veteran has not requested that another diagnostic code should be used for evaluation . 

As noted, the currently assigned 10 percent disability rating is the maximum schedular rating available under DC 8530 and the Board has determined that application of another diagnostic code is not warranted.  As such, the Board is unable to consider or grant a higher schedular rating.  As there is no legal basis upon which to award a higher schedular rating, the appeal on the issue of entitlement to an initial rating greater than 10 percent for left ilioinguinal nerve neuralgia must be denied as without legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

As the maximum allowable rating for an ilioinguinal injury has been awarded, the Board is directing the RO to consider the matter of whether referral of the Veteran's claim to the Director of Compensation and Pension Service for extra-schedular consideration under the provisions of 38 C.F.R. § 3.321(b) is warranted.  See Moyer v. Derwinski, 2 Vet. App. 289 (1992) (VA must consider the provisions of 38 C.F.R. § 3.321(b) when a claimant is in receipt of the maximum schedular evaluation). 

As instructed by VA's General Counsel, the issue of referral of the Veteran's claim to the Director of Compensation and Pension Service for extra-schedular consideration under the provisions of 38 C.F.R. § 3.321(b) may be bifurcated from an increased, schedular rating claim.  VAOPGCPREC 6-96 (Aug. 16, 1996).  This aspect of the claim is addressed in the remand, below.


ORDER

An initial schedular rating greater than 10 percent for service-connected left ilioinguinal nerve neuralgia is denied.


REMAND

The Veteran alleges that his 10 percent schedular  rating for left ilioinguinal nerve neuralgia does not adequately compensate him for the effects associated with his spinal cord stimulator implant used to treat his neuralgia symptoms.  To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

The provisions of 38 C.F.R. § 3.321(b) state as follows: 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that 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. 

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996). 

In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability.  The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. 

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance.  However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

Here, the Board finds that the Veteran's service-connected left ilioinguinal nerve injury affects him in ways not contemplated in the schedular criteria.  In December 2008, the Veteran underwent implantation of a dual-lead percutaneous ANS Octrode spinal cord stimulator implant.  He has been advised of a "60 degree flexion rule" wherein he was instructed to limit trunk flexion to 60 degrees as further motion increased the probability of moving the stimulator lead.  See Pain Clinic of Northwest Florida Report dated April 11, 2006.  Thus, the Veteran may experience some thoracolumbar spine physical limitations due to the implanted stimulator.

Additionally, the Veteran describes the implantation device as requiring battery recharges, and having difficulty sitting and lying down due to the location of the implantation device.  He underwent surgery in November 2012 to replace the ANS pulse generator. 

In the opinion of the Board, the criteria of DC 8530 do not reasonably describe this particular Veteran's disability level and symptomatology associated with his spinal cord stimulator implant.  Thus, the first prong of the Thun analysis has been met.

According to Thun, the next step in the analysis is whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  This is not shown.  

However, the criteria of 38 C.F.R. § 3.321(b) describe marked interference with employment and frequent periods of hospitalization as examples of the "governing norm."  VA's General Counsel has interpreted 38 C.F.R. § 3.321(b) as warranting referral when there is evidence that the disability picture presented by the Veteran would, in an average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where the evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  VAOPGCPREC 6-96 (Aug. 16, 1996).

Here, the Veteran's spinal cord stimulator implant may impose upon him thoracolumbar spine use limitations, and the Veteran reports that his implantation site is irritated by sitting and lying down.  See VA Form 9 received June 2013.  In the opinion of the Board, this type of disability picture is not contemplated by the criteria of DC 8350 and warrants review of the Director, Compensation and Pension for extraschedular consideration under 38 C.F.R. § 3.321(b).  Thus, the Board finds that the criteria for extraschedular referral under 38 C.F.R. § 3.321(b) have been met.

The Veteran also seeks a compensable rating for his service-connected GERD status post partial fundoplication.  He underwent partial fundoplication in July 1999 due to intractable GERD with poor distal esophageal motility.  His post-operative complaints included minimal dysphagia.

For reference purposes, fundoplication involves mobilization of the lower end of the esophagus and plication of the fundus of the stomach around it (fundic wrapping).  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 667 (28th Ed. 1994).  The term motility means the ability to move spontaneously.  Id. at 1059.

The RO has rated the Veteran's disability as noncompensable under DC "7399-7346."  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating.  38 C.F.R. § 4.27.  Here, the hyphenated diagnostic code indicates unlisted digestive disorders (DC 7399) rated, by analogy, under the criteria for hiatal hernia (DC 7346).  See 38 C.F.R. § 4.20.  The criteria of DC 7346 contemplate, inter alia, the symptom of dysphagia.

In a statement received in September 2009, the Veteran reported gastrointestinal symptoms of daily pain located in the area of his esophagus.  He described eating baby-sized portions of food due to a surgically reduced esophageal tract.  In the opinion of the Board, the Veteran's history of service-connected partial fundoplication and his current complaint of swallowing difficulty raise the potential applicability of DC 7203, which evaluates esophageal stricture.  Under this diagnostic code, the lowest 30 percent rating contemplates moderate stricture of the esophagus.  At this time, the Board finds that the medical evidence of record is inadequate to determine the applicability of DC 7203 and, if so, the nature and severity of esophageal stricture.  Thus, further examination is necessary to decide this claim.

Also, to ensure that all due process requirements are met, and that the record is complete, while these matters are on remand, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.  

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. 

Accordingly, these matters are hereby REMANDED for the following action:

1.  Associate with the claims file the Veteran's relevant records of VA treatment since May 30, 2013.

2.  Upon completion of the above, schedule the Veteran for appropriate examination to obtain information as to the current nature and severity of his service-connected GERD status post partial fundoplication.  The claims folder contents must be made available for examiner review.  

The claims file, to include a complete copy of this REMAND, and all relevant Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. 

All indicated tests and studies (to include X-rays) should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail.  

Following interview and examination of the Veteran, any necessary testing and review of the claims file, the examiner is requested to address the following:

	a) describe all symptomatology associated with service-connected GERD status post partial fundoplication; and

   b) provide opinion as to whether service-connected GERD status post partial fundoplication results in esophageal stricture and, if so, describe the overall severity of stricture present (e.g., mild, moderate or severe).

3.  After conducting any additional development deemed necessary, if any, refer to the Director, Compensation and Pension Service the issue of entitlement to extra-schedular consideration under 38 C.F.R. § 3.321(b) for service-connected left ilioinguinal nerve neuralgia status post spinal cord stimulator implant.

4.  Thereafter, readjudicate the issues of entitlement to a compensable rating for service-connected GERD status post partial fundoplication and entitlement to extra-schedular consideration under 38 C.F.R. § 3.321(b) for service-connected left ilioinguinal nerve neuralgia status post spinal cord stimulator implant.  With respect to the GERD claim, the RO should specifically determine the applicability of DC 7203 (esophageal stricture). 

5.  If any benefit on appeal is not granted in full, the RO should furnish the Veteran and his representative an appropriate supplemental statement of the case ref and afford them an appropriate period of time to respond before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).



______________________________________________
JACQUELINE E. MONROE 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs