Citation Nr: 1621386 Decision Date: 05/27/16 Archive Date: 06/08/16 DOCKET NO. 10-10 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a compensable rating for a right inguinal hernia. 5. Entitlement to a compensable rating for right lower extremity neuropathy. 6. Entitlement to a compensable rating for residual scars of hernia repair. REPRESENTATION Appellant represented by: Brian L. Marlowe, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1957 to November 1960. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in October 2008 and May 2011 by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in March 2016. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for COPD, bilateral hearing loss, and tinnitus, and entitlement to compensable ratings for right lower extremity neuropathy and residual hernia repair scar are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT The preponderance of evidence is against the finding that a right-side inguinal hernia requires the use of a support truss or belt. CONCLUSION OF LAW The criteria for a compensable rating for an inguinal hernia have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7338 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist On receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in May 2008, August 2010, and May 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in a January 2010 statement of the case and a December 2014 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2015). 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 service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2015). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2015). However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Different ratings may be assigned for separate periods of time if distinct periods are shown by the competent evidence of record during the pendency of the appeal that warrants different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). Right Inguinal Hernia The Veteran claims that his service-connected right inguinal hernia is more severe than that represented by the current 0 percent rating. Specifically, the Veteran claims that the right inguinal hernia causes intermittent pain and functional restrictions such as pain when he walks. The Board finds that the medical evidence of record, to include a VA examination, shows that the Veteran does not currently have a hernia, and that the disability does not require the use of a truss or belt. Therefore, the preponderance of evidence is against the finding that a right inguinal hernia warrants a compensable rating and the claim for increased rating must be denied. The Veteran's inguinal hernia is currently rated at a non-compensable level under Diagnostic Code 7338. 38 C.F.R. § 4.114, Diagnostic Code 7338 (2015). Under Diagnostic Code 7338, a 0 percent rating is assigned inguinal hernia that is reducible or without true hernia protrusion; or inguinal hernia that is not operated, but is remediable. A 10 percent rating is warranted for postoperative recurrent inguinal hernia that is readily reducible and well supported by truss or belt. A 30 percent rating is warranted for a small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. A 60 percent rating is warranted for a large inguinal hernia, postoperative recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. 38 C.F.R. § 4.114, Diagnostic Code 7338 (2015). An additional 10 percent is to be added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be rated, and 10 percent, only, added for the second hernia, if the second hernia is of compensable degree. 38 C.F.R. § 4.114, Diagnostic Code 7338, Note 1 (2015). The Board notes that as a preliminary matter, the Veteran has only contended, and the medical evidence only shows, that the Veteran had a hernia on the right side. Therefore, no additional or separate rating is warranted for any second, or bilateral, hernia. 38 C.F.R. § 4.114, Diagnostic Code 7338, Note 1 (2015). During a June 2014 VA examination, the Veteran was diagnosed with a right-side inguinal hernia. The examiner, after a review of the claims file and medical history, noted several recurrences and repairs of the hernia. However, the examiner found no current hernia condition, to include any indication of use of a supporting belt or truss. The examiner found no femoral or ventral hernia, and noted non-painful or stable scars from previous operations. Finally, the examiner found no functional impact to the Veteran from the service-connected hernia disability. The Board notes that in addition to a recurrent condition, under the appropriate Diagnostic Code for inguinal hernia, a compensable 10 percent rating is only warranted if the condition also requires the wearing of a support truss or belt. Here, no evidence of record demonstrates that the Veteran wears a supporting belt or truss, or that he has been prescribed any support device for the hernia. A close review of the evidence of record reveals no instance in which the Veteran asserts the use or need of a support device, or that any support device was medically prescribed. During the hearing, the Veteran noted only that he sometimes experienced pain and functional restrictions such as when lifting and walking long distances. However, the Veteran's testimony was silent on the use of a support belt. Additionally, the examiner from the June 2014 VA examination noted explicitly that the Veteran did not currently have any indication of a recurrent hernia, and that no supportive devices or belts were needed for the hernia disability. The Board finds that opinion to be highly probative, as it speaks directly to the inquiry of the severity of the Veteran's inguinal hernia, and is provided after an in-person inspection of the Veteran and a review of the medical history. Therefore, the Board finds that as the preponderance of the evidence is against a finding that the service-connected inguinal hernia requires the use of a supporting belt or truss, at any point during the appeals period, a compensable rating is not warranted under the appropriate Diagnostic Code. Therefore, the claim for an increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). Other Considerations As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the service-connected disability. If so, then the assigned schedular rating is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the Board finds that the schedular rating does not reasonably describe or contemplate the severity and symptomatology of the service-connected disability, then the Board must determine whether the exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. If additional factors are found, 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 to determine whether justice requires assignment of an extra-schedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence of record does not show that the Veteran's inguinal hernia is so unusual or exceptional in nature as to make the schedular rating inadequate. The Veteran's inguinal hernia has been rated under the applicable Diagnostic Code that fully contemplates the functional impairment of the disability. The evidence does not show frequent hospitalization due to the service-connected disabilities, or marked interference with employment beyond that envisioned by the ratings assigned. Therefore, the Board finds that referral for consideration of the assignment of an extra-schedular rating is not warranted. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to a compensable rating for a right-side inguinal hernia is denied. REMAND The Board finds that additional development is required for the claims for service connection for COPD, hearing loss, and tinnitus. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. With regard to the claim for service connection for COPD, the Veteran was provided two VA examinations in December 2009 and June 2014 to assess the nature and etiology of COPD. The Board finds that both examinations are incomplete. Specifically, the at December 2009 examination, the VA examiner did not address whether the Veteran's COPD was related to, or was secondary to, exposure to asbestos during service. While the examiner noted that the Veteran did not suffer from any of the known asbestos-related illness such as pleural plaque (calcification), malignant mesothelioma, or pleural effusion, the report is silent on whether any asbestos exposure caused the current COPD. The examiner only noted that the COPD was more likely related to the Veteran's long history of smoking. The Board finds that the VA examiner's opinion did not address or conclude that the Veteran's COPD was not etiologically related, or was less likely not, related to in-service exposure to asbestos. Additionally, the December 2009 examination report was silent on providing any rationale regarding why COPD was found not to be related to any aspect of active service. Therefore, the Board finds that VA examination to be incomplete for adjudication. The Board also finds that the June 2014 VA examination is incomplete. In that examination report, the VA examiner did not provide any opinion regarding the etiology of COPD, noting that the Veteran's claims file was not available for review. Therefore, that examination cannot be considered adequate for adjudication purposes. As neither VA examination has provided an adequate opinion, the claim must be remanded for another medical opinion or examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The June 2014 VA examination for the claims for hearing loss and tinnitus also did not provide any opinion regarding the etiology of those disabilities. The examiner noted that a nexus opinion was not possible without being provided the claims file or medical history. While the Board recognizes that the Veteran had previously been provided a VA examination for those claims, the Board finds that as the VA undertook the effort to provide the Veteran with an examination, that an examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Veteran's claim for service connection for hearing loss and tinnitus must be remanded for further development. A December 2014 rating decision established service connection for right lower extremity neuropathy and residual scar of a hernia repair, and assigned each disability a 0 percent rating. In December 2015, the Veteran filed a timely notice of disagreement to the ratings assigned for those disabilities. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the claim for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Issue a statement of the case on the issues of entitlement to compensable ratings for right lower extremity neuropathy and a residual scar of a hernia repair. Notify the Veteran of his appeal rights and that he must perfect a timely appeal if he wants appellate review of those issues. 2. Obtain all VA treatment medical records not already of record. 3. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private treating physicians or specialists that are not already of record. 4. Then, schedule the Veteran for a VA examination for the claim for service connection for COPD. The examiner must review the claims file and should note that review in the report. The examiner is asked to report on the nature and etiology of the Veteran's claimed COPD. The examiner is asked to address whether it is as likely as not (50 percent probability or greater) that any diagnosed respiratory disability is related active service, to include any chemical or asbestos exposure during service as described by the Veteran's lay testimony and statements. A complete rationale for any opinion expressed should be included in the examination report. 5. Then, schedule the Veteran for a VA examination for the claim for service connection for hearing loss and tinnitus. The examiner must review the claims file and should note that review in the report. The examiner is asked to report on the nature and etiology of the Veteran's hearing loss and tinnitus. The examiner is asked to address whether it is as likely as not (50 percent probability or greater) that hearing loss or tinnitus is related to active service or any noise exposure during service. The examiner must note consideration of the Veteran's lay statements with regards to the onset and continuity of symptomatology of hearing loss or tinnitus. A complete rationale for any opinion expressed should be included in the examination report. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs