Citation Nr: 1422901	
Decision Date: 05/20/14    Archive Date: 05/29/14

DOCKET NO.  11-11 356	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial compensable rating for a right inguinal hernia. 


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel









INTRODUCTION

The Veteran, who is the Appellant, served on active duty from July 1981 to July 1985.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). 
 
In August 2013, the Board remanded the case for further development, which has been completed.  Stegall v. West, 11 Vet.App. 268, 271 (1998).


FINDING OF FACT

A postoperative recurrent, readily reducible right inguinal hernia and well supported by truss or belt is not shown. 


CONCLUSION OF LAW

The criteria for an initial compensable rating for a right inguinal hernia have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.114, Diagnostic Code 7338 (2013).

VCAA 

Duty to Notify 

The appeal arises from the Veteran's disagreement with the initial rating following the grant of service connection.  Once service connection was granted the claim was substantiated and additional VCAA notice is not required.  


Duty to Assist

The RO has obtained service treatment records, VA records, and private medical records.  

The Veteran was afforded VA examinations in November 2009 and in September 2013.  As the examination reports are based on a review of the Veteran's history and described the findings in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the medical history and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 







VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7  

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. 
App. 505, 519 (2007).

The Veteran seeks an initial compensable rating for a right inguinal hernia, which is currently rated under Diagnostic Code 7338.  The Veteran asserts that a compensable rating should be assigned because the hernia is recurrent and painful.  

Under Diagnostic Code 7338, the criteria for a 10 percent rating is a recurrent postoperative inguinal hernia that is readily reducible and well supported by truss or belt.  

On VA examination in November 2009, the VA examiner found no evidence of a current inguinal hernia. 

From December 2007 to February 2011, private medical records include a history of an inguinal hernia.  The records also refer to a current right inguinal hernia.

In April 2011, in his substantive appeal, the Veteran stated that he had an uncomfortable inguinal hernia.




On VA examination in September 2013, the Veteran denied bulging in the inguinal area.  No hernia was identified.   The VA examiner concluded that the Veteran did not have a recurrent inguinal hernia.

While there is conflicting evidence regarding a recurrent inguinal hernia, there is no evidence of true protruding hernia that is readily reducible and well supported by truss or belt.  Absent evidence of a readily reducible hernia that is well supported by truss or belt, the criteria for a 10 percent rating have not been met.

Extraschedular Consideration

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation Service for consideration of an extraschedular rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  This is done by a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Comparing the manifestations of the inguinal hernia to the rating schedule, the rating criteria under Diagnostic Code 7338 describe the disability and the Veteran's symptomatology.  In other words, the Veteran does not experience any symptomatology not already encompassed by the Rating Schedule.  


Therefore referral for extraschedular consideration is not warranted under 38 C.F.R. § 3.321(b)(1).

Total Disability Rating for Compensation based on Individual Unemployability

The Veteran has not raised a claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase).


ORDER

An initial compensable rating for a right inguinal hernia is denied.



____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs