Citation Nr: 1642720 Decision Date: 11/07/16 Archive Date: 11/18/16 DOCKET NO. 11-04 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to rating in excess of 10 percent for postoperative recurrent right inguinal hernia. 2. Entitlement to a rating in excess of 10 percent for residual surgical scar, status post right inguinal hernia repair. 3. Entitlement to service connection for muscle disability, secondary to service-connected postoperative right inguinal hernia and/or residual surgical scar, status post right inguinal hernia repair. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1982 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008, March 2010, and February 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2011, the Veteran withdrew his request to appear at a hearing before a member of the Board. 38 C.F.R. § 20.704(e). In an October 2011 statement, the Veteran's representative raised the "claim for entitlement to compensation pursuant to 38 C.F.R. § 4.29 and/or § 4.30," as well as 38 U.S.C.A. § 1151. See October 2011 VA Form 646, p. 3, 7. These issues 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. 38 C.F.R. § 19.9(b) (2015). In March 2014, the Board remanded the claims identified above. The required development has been completed for the service connection claim and the claim for a higher rating for the Veteran's scar. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). However, as the requested development for the claim for a higher rating for the right inguinal hernia has not yet been accomplished, that issue is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's residual surgical scar, status post right inguinal hernia repair, is painful but without limitation of function, and is not deep, unstable, or greater than 7 centimeters/4.5 inches in length and .1 inches in width. 2. The Veteran does not have a current muscle disability of the rectus abdominis muscle area. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service-connected scar are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7804 (as in effect prior to and since October 23, 2008). 1. The criteria for entitlement to service connection for a muscle disability of the rectus abdominis muscle area are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Rating Claim for Scar The Veteran is currently assigned a 10 percent rating for a residual surgical scar associated with his right inguinal hernia repair. He contends that his disability is more severe than currently assigned. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). By way of background, a February 2008 rating decision granted service connection for right inguinal hernia and assigned a 10 percent rating, effective November 21, 2007. In September 2008, the Veteran submitted a statement requesting service connection for a painful scar associated with the inguinal hernia repair. However, in an October 2008 rating decision, it appears that the RO determined that a 10 percent rating for "residual surgical scar, status post right inguinal hernia repair," was "continued." The RO, at the time, did not provide separate ratings for the right inguinal hernia repair and the residual scar. The Veteran then submitted a July 2009 Notice of Disagreement (NOD) with the October 2008 rating decision. A February 2011 rating decision then stated that the evaluation of postoperative right inguinal hernia, which was 10 percent disabling, was "continued," and that the evaluation of the residual surgical scar, which was noncompensable, was increased to 10 percent effective November 21, 2007. The rating decision essentially granted a separate 10 percent rating for the surgical scar, effective from his initial service connection claim. A February 2011 Statement of the Case (SOC) was then issued regarding a higher rating for the scar, and the Veteran submitted a timely VA Form 9. Given the procedural history of the instant claim, the Board finds that this claim involves a request for a higher initial rating. During the pendency of the appeal, the schedule for rating disabilities of the skin under 38 C.F.R. § 4.118 were revised, effective October 23, 2008. These revisions are applicable only to claims filed on or after that date, or where the Veteran expressly requests review under such criteria. 73 Fed. Reg. 54708 (Sep. 23, 2008); see also 77 Fed. Reg. 2909-10 (Jan. 20, 2012) (correcting the applicability-date language for the revised rating criteria for scars). In the instant case, the Veteran's claim was filed before the change in regulation and he did not specifically request review under the revised criteria. However, the February 2011 Supplemental SOC (SSOC) specifically considered the claim under the regulations effective October 2008. Given VA's previous consideration of the current regulations and the complicated procedural history of the claim, the Board will consider the claim under both the prior and current regulations. An October 2008 VA examination report notes that the Veteran reported soreness around the incision area. The examiner found that the Veteran had a tender and painful scar associated with his right inguinal hernia. The examiner described the scar as "beautifully healed" with slight hyperpigmentation. The scar was .1 inches in width by 4.5 inches in length. There was no adherence to underlying tissue, no underlying soft tissue damage, no skin ulceration or breakdown over the scar, and no limitation of motion or loss of function due to the scar. A February 2010 VA examination report states that the Veteran had a 7 centimeter nontender scar that was "well healed" and not adherent. The Veteran was also afforded an August 2014 VA examination. The examiner stated that the Veteran had one painful scar. The scar was described as superficial, linear, slightly hypopigmented, and well healed with no signs of infection, inflammation, or skin breakdown. The scar was not elevated, depressed or adhered to the underlying tissue. The length of the scar was 7 centimeters with one 3-4 millimeter diameter knot of scar tissue at the medial end of the scar. Otherwise, the scar was nontender, with no evidence of hypertrophic scar or keloid formation, and there was no evidence that the scar impacted the movement of any underlying joint. The examiner further stated that the scar was not unstable and there was not frequent loss of covering of the skin. The examiner noted that the scar was not deep, not due to burns, not on the head, face, or neck, and did not result in limitation of function or any other physical complications. VA treatment records reveal that the Veteran reports that his scar is painful. See September 2011 and April 2013 VA treatment records. He further notes that he takes pain medication for his scar. See November 2013 VA treatment record. Regulations in Effect Prior to October 23, 2008 Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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 Veteran's scar is currently assigned a 10 percent rating under former 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. Under these rating criteria, scars that were superficial and painful on examination were rated 10 percent disabling. A superficial scar is one not associated with underlying soft tissue damage. A 10 percent rating was the maximum schedular rating associated with this DC. Accordingly, a higher schedular rating under DC 7804 is not applicable. The Veteran's service-connected scar does not cause disfigurement of the head, face, or neck so former DC 7800 does not apply. See October 2008, February 2010, and August 2014 VA examination reports. Scars on the body other than the head, face, or neck that were deep or that caused limited motion were rated under DC 7801. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note 2 (2007). A rating in excess of 10 percent under this DC requires a scar to exceed 12 square inches or 77 square centimeters. The medical evidence of record describes the scar as tender, painful, and superficial, but not deep. See October 2008 and August 2014 VA examination reports. The October 2008 VA examination report states that there is no underlying soft tissue damage. The February 2010 and August 2014 VA examination reports note that the scar is not adhered to the underlying tissue. Even though the more recent examination report notes that there is a slightly tender knot of scar tissue at the medial end of the well-healed surgical incision scar, the scar is only 7 centimeters/4.5 inches in length and .1 inches in width. See October 2008, February 2010, and August 2014 VA examination reports. Given these medical findings, a higher rating under DC 7801 is not warranted. The maximum schedular rating for former DC 7802 is 10 percent. 38 C.F.R. § 4.118, DC 7802. DC 7802 allowed for a 10 percent rating when scars on the body other than head, face, or neck were superficial, did not cause limited motion, and were greater than 144 square inches (929 square centimeters). Given that the medical evidence has described the Veteran's scar as 7 centimeters/4.5 inches in length and .1 inches in width, DC 7802 does not apply. See October 2008, February 2010, and August 2014 VA examination reports. A higher rating under DC 7803 is also not applicable. The maximum schedular rating for former DC 7803 is 10 percent. DC 7803 allows for a 10 percent rating only when scars are superficial and unstable. An unstable scar is described as a scar where there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7803, note 1 (2007). In the instant case, the October 2008 and August 2014 VA examination reports state that there is no skin breakdown over the scar. As there is no medical evidence that the scar is unstable, DC 7803 does not apply. DC 7805 is applicable when there is limitation of function of an affected part of the body due to the scar. Here, the October 2008 and August 2014 VA examination reports state that there is no limitation of motion or loss of function due to the scar. Therefore, a higher rating under DC 7805 is not applicable. Accordingly, the preponderance of the evidence is against a finding that a rating in excess of 10 percent for the service-connected scar is warranted pursuant to the relevant regulations in effect prior to October 23, 2008. The Board has also considered whether a staged rating is appropriate in this case. However, the symptoms associated with the scar have at no time during the appeal period manifested to the level required for a rating in excess of 10 percent. Regulations in Effect on and after October 23, 2008 Current DC 7800 is not applicable as the Veteran's scar is not located on his head, face, or neck. DC 7801 governs scars not of the head, face, or neck that are deep and nonlinear. A deep scar is described as a scar that is associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, note 1. Under DC 7801, a rating in excess of 10 percent requires the scar to cover at least 12 square inches (77 square centimeters). As noted above, the Veteran's scar is 7 centimeters. See February 2010 and August 2014 VA examination reports. The October 2008 VA examination report described the scar as .1 inch in width by 4.5 inches in length. Moreover, the medical evidence of record describes the scar as superficial. Even though the August 2014 VA examination report notes a 3-4 millimeter diameter knot of scar tissue at the medial end of the scar, a higher rating under DC 7801 is not warranted, given the length of the scar and the examiners' description of the scar as superficial. DC 7802 addresses scars not of the head, face, or neck that are superficial and nonlinear. A 10 percent rating is the maximum schedular rating under this DC if an area of 144 square inches or greater is involved. Given the findings regarding the size of the Veteran's scar, coupled with the findings of the August 2014 VA examiner that the scar is linear, this DC does not apply. A higher schedular rating is also not available under DC 7804. Here, one or two scars that are unstable or painful is rated 10 percent disabling, three or four scars that are unstable or painful are 20 percent disabling, and five or more scars that are unstable or painful are rated 30 percent disabling. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, note 1. If one or more scars are both unstable and painful, the Board must add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804, Note 2. Here, the Veteran has a single service-connected scar associated with his right inguinal hernia. Although the scar is painful, the medical evidence has repeatedly found that there is no skin breakdown over the scar, no adherence to underlying tissue, and no underlying soft tissue damage. The August 2014 examiner stated that the scar was not unstable. Thus, a higher schedular rating is not warranted as the Veteran has only one service-connected scar and the service-connected scar is not both painful and unstable. A rating under DC 7805 is also not applicable. DC 7805 covers other disabling effects not considered in a rating provided under DCs 7800-7804. Although the August 2014 VA examination report notes painful scar tissue and a February 2009 VA treatment record notes neuralgia of the ilio-inguinal nerve, the Veteran's service-connected scar has not been specifically associated with any loss of function not already contemplated by the currently assigned 10 percent rating for a painful scar. Here, the October 2008 VA examination report mentions that the scar causes no limitations of motion or loss of function, and that there were no residuals of nerve damage in relation to the hernia and scar. The August 2014 VA examination report similarly notes that the scar does not impact the movement of any underlying joint and does not result in limitation of function or any other physical complications, including nerve damage. Thus, a higher schedular rating under DC 7805 is not warranted. Accordingly, the preponderance of the evidence is against a finding that a rating in excess of 10 percent for service-connected scar is warranted pursuant to the current rating criteria. The Board has also considered whether a staged rating is appropriate in this case; however, the symptoms associated with the scar have at no time during the appeal period manifested to the level required for a rating in excess of 10 percent. Additional Considerations Here, the evidence of record reveals that the Veteran is employed. Therefore, a claim for a total disability rating based on individual unemployability is not reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board need not address whether referral for extraschedular consideration is warranted, as that issue has not been reasonably raised by the Veteran or the record. See Yancy v. McDonald, 27 Vet. App. 484 (2016). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. To establish service connection on a secondary basis, three elements must be met: (1) current disability; (2) service-connected disability; and (3) nexus between current disability and service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as joint pain, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, the Veteran asserts that he has a muscle disability. Specifically, he states that his muscles have "weakened" as a result of his hernia surgeries, which leads to pain in the groin area. See September 2009 statement. It is his contention that he has a muscle disability that is the result of his service-connected post-operative recurrent right inguinal hernia and/or his service-connected residual surgical scar, status post right inguinal hernia repair associated with postoperative recurrent right inguinal hernia. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). His service treatment records reveal that he had an in-service right inguinal hernia repair. However, the service treatment records do not show that he had any associated muscle damage in service. An October 2008 VA examination report notes that the Veteran reported symptoms of soreness around the incision. However, the examination revealed no underlying soft tissue damage and the examiner did not note the presence of any muscle disability. A February 2010 VA examination report reveals that the Veteran continued to report symptoms of soreness, weakness, and pain. The examination report discusses the right hernia surgery and states that there is a history of trauma to the muscles due to surgical intervention. The examination report also notes current symptoms of pain and increased fatigability, but no nerve damage. After a physical examination, the examiner determined that the Veteran did not have a muscle condition or muscle involvement, even though he had a tender area over the right internal ring. There was no evidence of muscle herniation, loss of deep fascia or muscle substance, or loss of motion of any joint by muscle disease or injury. The Board remanded the claim in March 2014 for an additional VA examination. In the August 2014 VA examination report, the examiner explains that "by definition, right inguinal herniorrhaphy involves mild disruption of the rectus abdominis muscle in order to repair said hernia. In this case, as is the usual, that disruption was adequately repaired with no residual disruption in the muscle or its function." The examiner further states that there is no objective evidence of any muscle injury or defect, and there is no objective evidence of any residual muscle damage with regard to the service-connected right inguinal herniorrhaphy. The examiner also notes that the Veteran does not have any muscle or nerve damage associated with any scar. He states that the claimed condition does not exist, and explains that what the Veteran claims is a muscle defect is actually a slightly tender knot of scar tissue at the medial end of the well-healed surgical incision scar. Although a February 2009 treatment record notes possible neuralgia of the ilio-inguinal nerve, the Veteran's VA treatment records do not confirm the presence of any muscle disability of the abdominal region. Moreover, the February 2010 and March 2014 VA examiners specifically found that the Veteran did not have a muscle disability. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. § 1110. Although the Veteran contends that he has weakened muscles as a result of his hernia surgery, he is not competent to render a diagnosis of an underlying muscle disability, as he does not have the requisite medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, his assertions of a current muscle disability do not constitute competent medical evidence. Here, the VA examiners specifically state that the Veteran does not have a muscle injury or defect. The VA medical examination reports, which reflect that the Veteran does not have a current muscle disability, are of significantly more probative than the Veteran's lay statements, as the Veteran is not competent to render a diagnosis in the instant case. Moreover, the findings made at the VA examination were reported by medical professionals based upon objective clinical observation. Since the claims file is void of competent evidence establishing that the Veteran currently has a current muscle disability of the rectus abdominis muscle area, service connection cannot be established. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In light of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim. The Board has considered the benefit-of-the-doubt rule. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for residual surgical scar, status post right inguinal hernia repair is denied. Service connection for a muscle disability is denied. REMAND In March 2014, the Board remanded the claim for a rating in excess of 10 percent for service-connected postoperative recurrent right inguinal hernia for a SOC. An SOC specific to this claim has not yet been issued. As such, an additional remand is required in order for the AOJ to issue the Veteran a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: Issue the Veteran a SOC addressing his claim for a rating in excess of 10 percent for postoperative recurrent right inguinal hernia. The Veteran and his representative should be advised that if he wants the Board to consider this matter, he should timely submit a substantive appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs