Citation Nr: 1645158 Decision Date: 12/01/16 Archive Date: 12/19/16 DOCKET NO. 13-05 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a disability rating higher than 10 percent for a left inguinal hernia with mesh repair. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Drummer INTRODUCTION The Veteran served on active duty in the U.S. Army during the Vietnam Era from March 1966 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted an increased rating to 10 percent for a left inguinal hernia with mesh repair, effective as of January 5, 2010, the date of the Veterans' claim for an increased rating. In September 2013, while sitting at the RO, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claim folder. In April 2014, the Board remanded the case for further development. That development is now complete and the case returns for appellate review. FINDINGS OF FACT 1. From October 9, 2009 to November 12, 2009, the Veteran had a post-operative recurrent left inguinal hernia, which was then surgically repaired on November 13, 2009. 2. The November 13, 2009, left inguinal hernia surgery required a convalescence period of two months. 3. Since January 9, 2010, the Veteran's left inguinal hernia with mesh repair has manifested with symptoms of pain, burning, and intermittent spasms; with no recurrence of the hernia since the November 2009 surgery. CONCLUSIONS OF LAW 1. From October 9, 2009 to November 12, 2009, the criteria for a 30 percent disability rating, but not higher, for a left inguinal hernia with mesh repair have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.114, DC 7338 (2015). 2. The criteria for a temporary total convalescent rating effective November 13, 2009, and continuing for a period of two months (i.e., until January 8, 2010) are satisfied. 38 U.S.C.A. §§ 501, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.30 (2015). 3. From January 9, 2010 forward, the criteria for a disability rating greater than 10 percent for a left inguinal hernia with mesh repair have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.114, DC 7338 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA's duty to notify was satisfied by a letter dated in February 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the Veteran's VA treatment records and private treatment records have been associated with the claims file. See 38 U.S.C.A. § 5103A (West 2014), 38 C.F.R. § 3.159 (2015). The Veteran has not identified any other records he wished to submit or have VA obtain. Thus, the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf. See 38 C.F.R. § 3.159 (c) (2015). Further, the Veteran was afforded VA examinations in March 2010 and January 2015. The Board finds that the examination reports reflect consideration of the Veteran's medical history and thoroughly describe his left hernia inguinal symptoms and impact on functioning. Accordingly, they are adequate for the Board to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); 38 C.F.R. §§ 3.159 (c)(4), 3.326(a), 3.327 (2015). There is no evidence indicating that there has been a material change in the severity of the Veteran's left inguinal hernia since the last examination in January 2015. See 38 C.F.R. § 3.327 (a) (2015) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). The Board remanded this claim in April 2014 to obtain additional records and to afford the Veteran a new VA hernia examination. All of these actions have been accomplished. Accordingly, the Board finds there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In sum, the Veteran has had a meaningful opportunity to participate effectively in the processing of his claim, and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). II. Increased Rating The Veteran asserts that he is entitled to a disability rating in excess of 10 percent for his service-connected left inguinal hernia with mesh repair. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321 (2015); see generally, 38 C.F.R. § Part IV (2015). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2015). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. See 38 C.F.R. § 4.7 (2015). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3 (2015); see also 38 C.F.R. § 3.102 (2015). Since the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating to determine whether and when an ascertainable increase has occurred. See Hart, 21 Vet. App. at 509 (noting that "the relevant temporal focus" is on "the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim"); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hazan v. Gober, 10 Vet. App. 511, 519 (1992); 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2015). Disabilities of the hernia, inguinal are rated under Diagnostic Code (DC) 7338. See 38 C.F.R. § 4.114, DC 7338 (2015). A 10 percent evaluation is warranted for a recurrent post-operative hernia which is readily reducible and well-supported by a truss or belt. A 30 percent evaluation requires a small post-operative recurrent hernia or an unoperated irremediable hernia which is either not well-supported by a truss or not readily reducible. A 60 percent evaluation requires an inoperable large post-operative recurrent hernia which is not well-supported under ordinary conditions and not readily reducible merits a 60 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code (DC) 7338. Now, turning to the objective medical evidence of record, on October 9, 2009 the Veteran was seen at The Baton Rouge Clinic with complaints of a symptomatic left inguinal hernia. He underwent surgery to repair his left inguinal hernia on November 13, 2009. On follow-up on November 20, 2009, he complained of left groin pain, but improving, and minor swelling, one week following his left inguinal hernia with mesh repair surgery. The Veteran denied any nausea or vomiting and stated that his bowel movements were normal. Two weeks later on December 4, 2009, he denied any pain in his left groin and the examiner indicated that no hernia was present. Further, the Veteran denied any nausea or vomiting and stated that his bowel movements were normal. The examiner noted that he was doing well, status post-surgery. The Veteran's March 2010 VA hernia examination showed no evidence of a recurring left hernia. The report also showed a completely healed surgical scar. The examination report also indicated that the Veteran reported post-operative pain and soreness, consistent with the recent surgical procedure, with progressive resolution of symptoms. The Veteran was employed full time and had returned to his usual occupation as an owner/manager of a restaurant/catering business. He was progressively returning to full duty with precautionary restrictions relative to weight lifting and straining activities related to the surgical procedure. He reported that he had lost 8 weeks of work due to post-operative recovery from his hernia surgery. A May 2010 VA treatment record shows that the Veteran reported undergoing surgery to repair his left inguinal hernia in November 2009. The treatment record did not contain any reported symptoms by the Veteran of his left inguinal hernia. At his January 2015 VA hernia examination, the Veteran reported some discomfort in the area of his left hernia since the 2009 repair surgery, which he described as some intermittent spasms after prolonged driving. The Veteran also reported that he did not notice any bulging or any associated gastrointestinal issues. The Veteran stated that he owns a restaurant and that at times, has to lift packages weighing about 50-60 lbs. He reported that he has not noticed any discomfort in his left inguinal area while doing so. On examination, the examiner detected no left hernia. The examiner did note a residual surgical scar of the left inguinal hernia that was neither painful nor unstable, and that was asymptomatic. The examiner opined that the Veteran's hernia condition has no functional impact on his ability to work. The examiner also opined that the Veteran reported mild residual discomfort at the surgical site of the previous left inguinal hernia, described as intermittent spasm occurring after prolonged driving. Further, the examiner stated that this discomfort is not associated with any signs of any recurrence of the left inguinal hernia. Finally, the examiner noted that there were no associated gastrointestinal issues. Now, turning to the lay evidence, in February 2010, three months following the Veteran's hernia surgery, he stated that he had pain associated with his hernia and that he had to hire someone part-time to help him lift heavy objects at his small business. He stated that he could not due excessive lifting as it may cause a recurrence of the hernia. More recently at his September 2013 hearing, the Veteran testified that he has not had any infections or recurring hernias since his left inguinal hernia with mesh repair surgery. He also testified that he experiences burning in his left hernia area when he sits for a long time, is driving, or is lifting something. He also testified that he experiences gastrointestinal issues, such as having a lot of gas and sometimes burning bowels. Finally, the Veteran testified that he lost time from work when he had his hernia surgery in 2009. As noted above, for increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, VA considers the level of disability for the period beginning one year prior to the claim for a higher rating to determine whether and when an ascertainable increase has occurred. See Hart, 21 Vet. App. at 509 (noting that "the relevant temporal focus" is on "the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim"). Here, the Veteran submitted his claim for an increased rating on January 5, 2010. During the one-year period prior to that, he was shown to have a recurrence of his left inguinal hernia on October 9, 2009, which was then surgically repaired on November 13, 2009. Because a post-operative left inguinal hernia was shown to be present on October 9, 2009, the Board finds that a 30 percent rating is warranted from that date until November 12, 2009, the day prior to its surgical repair. A rating in excess of 30 percent is not warranted as the hernia was not unoperated irremediable. To the contrary, the hernia was operated on and repaired on November 13, 2009, and has not recurred since that time. The scope of the evaluation of the Veteran's increased rating claim includes the issue of whether a temporary total convalescent rating is warranted for the November 13, 2009 left inguinal hernia repair. See 38 C.F.R. § 4.30. Although this issue was not certified to the Board or specifically raised by the Veteran, VA must adjudicate as part of the claim entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 C.F.R. Part 4, VA Schedule for Rating Disabilities, as well as any ancillary benefits. 38 C.F.R. § 3.155(d)(2) (2015). Entitlement to such benefits must be considered when raised by the record, whether or not the claimant asserts entitlement to them. See id. In this regard, VA must consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition. Id. As discussed, the Veteran underwent surgical repair on November 13, 2009 for his left inguinal hernia. On VA examination in March 2010, the Veteran stated that he had missed 8 weeks of work due to post-operative recovery from his hernia surgery. Thus, the record clearly raises the issue of entitlement to a temporary total convalescent rating based on this surgery. Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. The termination of total ratings under this section are not subject to the notice and other procedural requirements under 38 C.F.R. § 3.105(e) (2015). Id. An extension of 1, 2, or 3 months beyond the initial 3 months may be granted based on the factors enumerated above, and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager. Id. The Board finds that a total convalescent rating of two months is warranted for the November 2009 hernia surgery. The Veteran has stated that he was out of work for two months following the surgery. Accordingly, resolving reasonable doubt, a total convalescent rating is granted from November 13, 2009, and continuing for a two-month period, until January 8, 2010, for surgical convalescence as a result of the November 2009 left inguinal hernia repair. See 38 C.F.R. § 4.30; see also 38 C.F.R. § 3.102. From January 9, 2010, forward, the Board finds that an evaluation in excess of 10 percent is not warranted under DC 7338. The evidence does not show, and the Veteran has not asserted, that his left inguinal hernia has recurred since his November 2009 surgery. The Veteran himself has denied any recurrence of the hernia and the VA examiners in March 2010 and January 2015 specifically noted that there was no evidence of recurrence of the left inguinal hernia. In the absence of recurrence of the hernia, the Board finds that entitlement to a rating in excess of 10 percent is not warranted from January 9, 2010, forward. The Board has also considered whether a separate rating is warranted for a scar associated with the Veteran's left inguinal hernia with mesh repair, and/or any gastrointestinal manifestations. However, the VA examiner in March 2010 noted that the scar was completely healed and the VA examiner in January 2015 described the scar as asymptomatic noting that it was neither painful nor unstable. Therefore, a separate rating is not warranted for a scar associated with the left inguinal hernia with mesh repair. See 38 C.F.R. § 4.118, DC 7804 (2015). And while the Veteran testified in September 2013 that he experiences gastrointestinal issues, such as having a lot of gas and sometimes burning bowels, he later denied any gastrointestinal symptoms at the time of his January 2015 VA examination. The VA examiner also noted that there were no gastrointestinal issues associated with the Veteran's inguinal hernia. In the absence of any associated gastrointestinal manifestations, a separate rating is not warranted. See 38 C.F.R. § 4.114 (2015). Accordingly, the preponderance of the evidence weighs against a rating higher than 10 percent for the Veteran's service-connected left inguinal hernia with mesh repair, from January 9, 2010, forward. See 38 C.F.R. § 3.102 (2015); see also 38 C.F.R. § 4.7 (2015). Consequently, the benefit-of-the-doubt rule does not apply and the claim is denied. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7 (2015); Gilbert, 1 Vet. App. at 55. The evaluation of the Veteran's left inguinal hernia disability does not warrant referral for extraschedular consideration. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this regard, because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. The governing norm in these exceptional cases is a finding that the disability at issue 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. 38 C.F.R. § 3.321(b)(1). These criteria have been broken up into a three-step inquiry: (1) The schedular criteria must be inadequate to describe the claimant's disability level and symptomatology; (2) There must be related factors such marked interference with employment or frequent periods of hospitalization; (3) If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 114. Here, a comparison of the Veteran's left inguinal hernia disability with the schedular criteria shows that the rating criteria are adequate to describe the disability level and symptomatology. Therefore the first step of the inquiry is not satisfied. See Thun, 22 Vet. App. at 114. Specifically, the Veteran's symptoms include pain and/or burning, intermittent spasms, and restrictions with respect to his ability to lift heavy objects. These manifestations are contemplated under 38 C.F.R. § 4.114, DC 7338. By regulation, the schedular ratings are assumed to provide adequate compensation for "considerable loss of working time from exacerbation or illness proportionate to" the nature and severity of the disability. See 38 C.F.R. § 4.1. Their basis is the ability to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The objective data upon which the schedular evaluations are based thus serve as markers of disability at different levels of severity in terms of the ability to function under the ordinary conditions of daily life and employment without specifically describing how that disability may manifest in everyday life. Therefore, they cannot be found inadequate solely because they do not mention a particular symptom, clinical finding, example of functional impairment, or manner of coping with the disability, when they are generally devoid of any such description whatsoever. There is no evidence that the Veteran's left inguinal hernia pathology, symptoms, and functional limitations are not contemplated by the rating criteria, which must be assumed to capture a wide range of disabling manifestations. Cf. 38 C.F.R. § 4.1. In sum, the evidence does not show symptoms or disabling manifestations of the Veteran's left inguinal hernia disability different from, or more severe than, what is contemplated by the schedular criteria such as to render their application impractical. Accordingly, the schedular criteria are adequate to rate the Veteran's left inguinal hernia disability and its severity. Therefore, the first step of the inquiry is not satisfied. See Thun, 22 Vet. App. at 115; 38 C.F.R. § 3.321(b). Because the first step is not satisfied, the Board will not refer the evaluation of the Veteran's left inguinal hernia disability for extraschedular consideration. See id. ORDER From October 9, 2009 to November 12, 2009, entitlement to a 30 percent disability rating, but not higher, for left inguinal hernia with mesh repair is granted. From November 13, 2009 to January 8, 2010, a temporary 100 percent rating based on surgery necessitating convalescence is granted. From January 9, 2010, forward, entitlement to a disability rating higher than 10 percent for left inguinal hernia with mesh repair is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs