Citation Nr: 1342845 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-07 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a compensable rating for a right inguinal hernia. 2. Entitlement to a compensable rating for a ventral hernia. 3. Entitlement to an initial compensable rating for a left inguinal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from July 1967 to May 1970. This appeal arises to the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, that in pertinent part granted service connection and a noncompensable rating for a left inguinal hernia, denied a compensable rating for a right inguinal hernia, and denied a compensable rating for a ventral hernia. In January 2013, the RO granted separate service connection and a 10 percent rating for left ilioinguinal neuropathy (to compensate the Veteran for inguinal and testicle pain). The RO also granted a separate 10 percent rating for the abdominal surgery scars (to compensate the Veteran for a ventral hernia scar as well as other colostomy scars associated with service-connected gunshot wound residuals). The Veteran has not expressed dissatisfaction with these ratings or the effective dates for these ratings, although the 1-year appeal period has not yet lapsed. Because a notice of disagreement with these issues has not been filed, the Board lacks jurisdiction to address them. During a June 2013 videoconference hearing before the undersigned Veteran's Law Judge, and later in writing, the Veteran withdrew an appeal for an increased rating for abdominal gunshot wounds. The Board therefore lacks jurisdiction to address this issue. During the June 2013 videoconference hearing, the Veteran testified that his ventral hernia scar precluded sexual intercourse and that the medication prescribed for his hernias caused kidney problems. Secondary service connection for a claimed sexual dysfunction and a claimed kidney disorder is referred to the RO for appropriate action. The United States Court of Appeals for Veterans Claims (hereinafter: the Court) has held that where the Veteran or the record reasonably raises the issue of unemployability, due to a disability for which an increased rating is sought, then an inferred TDIU claim must be addressed, as it is part and parcel to the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the RO has granted TDIU for the latter portion of the appeal period, leaving only the earlier portion of the appeal period for consideration of a TDIU rating. However, the Veteran has recently-and in writing-withdrawn his appeal for an earlier effective date for TDIU. Although an implied TDIU claim for the earlier portion of the appeal period exists, VA regulation clearly states that a claimant may withdraw any appeal at any time prior to a Board decision on the matter. 38 C.F.R. § 20.204 (a), (b), (c) (2013). Because the Veteran has properly withdrawn the appeal, the Board need not address entitlement to an earlier effective date for TDIU in this case. The record before the Board consists of the paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Throughout the appeal period, a ventral hernia has been manifested by healed post-operative wounds, no related disability, and no need for truss or belt; neither a small postoperative ventral hernia that is not well-supported by a belt under ordinary conditions, nor a healed hernia or postoperative wound with weakening of the abdominal wall and indications for a supporting belt, is shown. 2. Throughout the appeal period, the right inguinal hernia has been manifested by a completely healed right inguinal hernia; there is no medical evidence of a recurrent postoperative right inguinal hernia. 3. Throughout the appeal period, the left inguinal hernia has been manifested by a recurrent, postoperative hernia; there is no medical evidence that tends to show that the left inguinal hernia is not readily reducible or not well-supported by a truss. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a compensable schedular rating for a ventral hernia are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321 (b), 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7339 (2013). 2. Throughout the appeal period, the criteria for a compensable schedular rating for a right inguinal hernia are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321 (b), 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7338 (2013). 3. Throughout the appeal period, the criteria for an initial 10 percent schedular rating for a left inguinal hernia are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321 (b), 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7338 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in January 2009 with regard to the claims on appeal. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the RO in February 2009. VA's duty to assist the claimant in the development of the claims has also been met. The service treatment records and all pertinent VA and private treatment records have been obtained and associated with the file. VA examinations and opinions with respect to the issues on appeal were obtained. When VA provides a medical examination or medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical opinions obtained in this case are adequate, as the medical experts considered the pertinent evidence of record and the statements of the claimant and provided a rationale for their opinions, relying on and citing to the records reviewed. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). A service-connected right inguinal hernia has been rated zero percent since 1980 under Diagnostic Code 7338. Under Diagnostic Code 7338, Inguinal Hernia, a noncompensable evaluation is warranted for a small reducible inguinal hernia; for one that is without true hernia protrusion; and, for any preoperative inguinal hernia that is remediable. A 10 percent evaluation is appropriate for a recurrent postoperative hernia that is readily reducible and well supported by a truss or belt. A 30 percent evaluation is warranted for a small recurrent postoperative hernia, or an un-operated irremediable hernia, that is not well supported by truss, or is not readily reducible. A 60 percent evaluation is appropriate for a large postoperative recurrent hernia that is considered inoperable, that is not well supported under ordinary conditions, and that is not readily reducible. When there are bilateral inguinal hernias and both are compensable, the more severely disabling hernia is evaluated and 10 percent is added for the second hernia. 38 C.F.R. § 4.114, Code 7338 (2013). A service-connected ventral hernia has been rated zero percent under Diagnostic Code 7339. Under Diagnostic Code 7339, a 100 percent rating is warranted for a massive, persistent, severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. A 40 percent evaluation is warranted for a large ventral hernia which is not well supported by a belt under ordinary conditions. A 20 percent evaluation is warranted for a small postoperative ventral hernia which is not well supported by a belt under ordinary conditions, or a healed hernia or post operative wound with weakening of the abdominal wall and indications for a supporting belt. A noncompensable rating is warranted for healed post-operative wounds, when there is no related disability and a belt is not indicated. 38 C.F.R. § 4.114, Diagnostic Code 7339 (2013). A left inguinal hernia has been rated zero percent disabling effective from January 5, 2009, under Diagnostic Code 7338. The Veteran has undergone multiple left inguinal hernia repair surgeries for recurring left inguinal hernias since active service. A January 1996 VA pre-surgery note mentions a left inguinal bulge, very painful, that did not resolve. A June 2007 private consultation report mentions that a May 2007 computerized tomography study revealed a mesh in the right anterior abdominal wall presumably related to a ventral hernia repair. In January 2009, the Veteran requested an increased rating. A January 2009 VA compensation examination report reflects residuals of multiple shrapnel penetrations into the abdomen and intestines with multiple complications. Right and left inguinal hernias later appeared. According to the examiner, these hernias are secondary to shrapnel wounds, retained shrapnel, and multiple abdominal surgeries. A 9-inch abdominal surgical scar represents a ventral hernia repair. The Veteran reported that this abdominal scar was painful and precluded wearing any undergarment with an elastic waistband, although the examiner described the ventral scar as non-tender and well healed. The examiner mentioned that the left inguinal hernia has undergone surgical repair for three recurrences of the hernia, whereas the right inguinal hernia has not reappeared since its initial corrective surgery. The most recent recurrence on the left was in 2005 (as noted below, the Veteran later testified that the most recent surgery on the left was in 2008). The examiner made no specific finding that either inguinal hernia was large, or inoperable, or that either hernia could not be well-supported by truss or belt. Social Security Administration records reflect that in December 2009, the Veteran was found disabled from employment, effective December 27, 2008, due primarily to disorders of the back, but secondarily due to "hernias." In a February 2010 substantive appeal, the Veteran reported chronic pain. In October 2010, the Veteran reported that he last worked on December 28, 2008, and that he no longer worked because of chronic pain due to service-connected disabilities. A May 2011 VA examination report reflects that an examiner evaluated all three service-connected hernias and noted a history of 5 previous left inguinal hernia repair surgeries. The Veteran complained of left inguinal pain radiating to the left testicle and reported that he had no symptom of the right inguinal hernia repair. The examiner stated that there was no active, current hernia, save for a hiatal hernia. The diagnosis was left ilioinguinal neuropathy. The RO later granted service connection and assigned a 10 percent rating for this ilioinguinal neuropathy. An October 2012 VA compensation examination report reflects that the physician attributed many abdominal complaints, including diarrhea, fecal incontinence, weight loss, nausea, and vomiting, to service-connected abdominal wounds, rather than to a service-connected ventral hernia or either inguinal hernia. A mid-line abdominal surgical scar measured 9-inches by 0.5-inches. This scar represented the ventral hernia repair surgery. The examiner found the scar to be deep and linear, but not painful, unstable, or disfiguring. There was no other residual of the ventral hernia. The examiner described other colostomy scars about the abdomen, not associated with any of the three service-connected hernias. The examiner did not address either inguinal hernia repair site or complaints of inguinal and testicle pains. The RO later granted service connection and a separate 10 percent rating for all abdominal scars, including the ventral hernia repair scar. The Veteran did not appeal that rating or its effective date. In June 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge that he had intermittent left testicle pain and that he cannot lift over 100 pounds. He testified that he is occasionally bedridden for a day or two while recovering from pain. He testified that his ventral hernia scar precluded sexual intercourse. He testified that the medication prescribed for his hernias caused kidney problems. He testified that the most recent VA left hernia repair surgery was in 2008. He testified that the right inguinal hernia presented no symptom. As noted in the Introduction, the RO has recently granted separate service connection and a 10 percent rating for left ilioinguinal neuropathy to compensate the Veteran for inguinal and testicle pain. The RO also granted a separate 10 percent rating for abdominal surgery scars to compensate the Veteran for a ventral hernia scar. The Veteran has not expressed dissatisfaction with these ratings or the effective dates for these ratings and therefore, the Board will not address them. The facts set forth above reflect that the service-connected ventral hernia is has been manifested throughout the appeal period by healed post-operative wounds, no need for a truss or belt, and no other disability. While the 9-inch surgery scar is tender or painful, a compensable rating has been assigned for that symptom and the Veteran has not appealed that rating. The criteria for a compensable schedular rating for a ventral hernia are not more nearly approximated because neither a small postoperative ventral hernia that is not well-supported by a belt under ordinary conditions, nor a healed hernia or postoperative wound with weakening of the abdominal wall and indications for a supporting belt, is shown. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 54. The claim for a compensable schedular disability rating for a ventral hernia must therefore be denied. The facts of the case also show that the service-connected right inguinal hernia has been manifested throughout the appeal period by a healed right inguinal hernia. No symptom was reported by the Veteran. The criteria of a 10 percent rating are not more nearly approximated because a recurrent postoperative right inguinal hernia is not shown. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Id. The claim for a compensable schedular disability rating for a ventral hernia must therefore be denied. The service-connected left inguinal hernia has been manifested throughout the appeal period by a recurrent postoperative hernia that more nearly approximates the criteria of a 10 percent rating There is no medical evidence that tends to show that the recurrent left inguinal hernia is not readily reducible or not well-supported by a truss. The criteria for a 30 percent rating are therefore not more nearly approximated. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. A 10 percent schedular disability rating for a left inguinal hernia must therefore be granted. The evidence does not contain factual findings that demonstrate distinct time periods in which any service-connected hernia disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, 21 Vet. App. at 510. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (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 extra-schedular disability rating must be in the interest of justice. Id, at 1368. In this case, unemployability is shown and VA has already granted this benefit to the Veteran's satisfaction. There is no evidence that the case presents other indicia of an exceptional or unusual disability picture or that an extra-schedular rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). ORDER A compensable schedular rating for a ventral hernia is denied. A compensable schedular rating for a right inguinal hernia is denied. An initial schedular 10 percent rating for a left inguinal hernia is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs