Citation Nr: 1637530 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 13-33 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable rating for post-operative residuals of a left inguinal hernia with scar. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board has recharacterized the Veteran's claim as reflected on the title page of this decision to better reflect the Veteran's contentions. In October 2015 and March 2016 the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for further development. The requested development as to the claims adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The post-operative residuals of a left inguinal hernia with scar is manifested by subjective complaints of pain and no objective findings of a left inguinal hernia recurrence with no painful, tender or unstable scarring. CONCLUSION OF LAW The criteria for a compensable rating for post-operative residuals of a left inguinal hernia with scar have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2014) C.F.R. §§ 4.1, 4.2, 4.7, 4.114, 4.118, Diagnostic Codes (DCs) 7801-7804, 7338 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, the Vetera has filed a claim for an initial higher rating for post-operative residuals of a left inguinal hernia with scar, the Board notes that in cases where a compensation award has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a Veteran in the development of the claim. That duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, relevant VA medical records and VA medical examinations, and the Veteran's own contentions. Increased rating Disability evaluations are determined by the application of the VA 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's post-operative residuals of a left inguinal hernia with scar is currently rated as noncompensable under Diagnostic Code (DC) 7338. Under DC 7338 (hernia, inguinal), a 0 percent evaluation is assigned for small, reducible hernia, or without true hernia protrusion, or for not operated but remediable hernia. A 10 percent evaluation is assigned for postoperative recurrent hernia, readily reducible and well supported by truss or belt. A 30 percent evaluation is warranted for small, postoperative recurrent hernia or un operated irremediable hernia, not well supported by truss or not readily reducible. A 60 percent evaluation is warranted for large, postoperative, recurrent hernia, not well supported under ordinary conditions and not readily reducible, when considered inoperable. DC 7802 provides for a maximum 10 percent rating for superficial and nonlinear scars over an area or areas of 144 square inches or greater. Note (1) states that a superficial scar is one not associated with underlying tissue loss. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2014). Under DC 7801, scars that are deep or that cause limited motion are rated 10 percent disabling for area(s) exceeding 6 square inches (39 sq. cm.), or 20 percent for area(s) exceeding 12 square inches (77 sq. cm.). Scars that are superficial, do not cause limited motion, and cover an area of 144 inches (929 sq. cm.) or greater are given a 10 percent rating under DC 7802. Unstable superficial scars are rated 10 percent disabling under DC 7803. Under DC 7804 (scar(s), unstable or painful), a 10 percent evaluation is assigned for one or two scars that are unstable or painful. A 20 percent evaluation is assigned for three or four scars that are unstable or painful. A 30 percent evaluation is assigned for five or more scars that are unstable or painful. Note (1) to DC 7804 states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Other scars are rated based on the limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805 (2014). Factual Background The Veteran contends that he is entitled to an initial compensable rating for his post-operative residuals of a left inguinal hernia with scar. By way of history, the Veteran underwent a March 1983 left inguinal hernia repair while in-service. The Board notes that the Veteran has been separately denied entitlement to service connection for his diagnosed ventral hernia conditions discussed below (claimed as an umbilical hernia). Although an umbilical hernia was incurred in 1984 and found to be related to the ventral hernias (status post ventral herniorrhaphy with residual scarring and recurrent ventral hernia and diastasis rectus) by a March 2016 VA examiner, the umbilical hernia occurred during a dishonorable period of service from August 1981 to July 1985 and the Veteran was found by the RO to not be entitled to benefits for his dishonorable period of service. The Veteran was afforded a VA hernia examination in May 2012. The Veteran was noted to have an inguinal hernia which onset in 1981 and was diagnosed in 1983 and a ventral hernia from 2012. The Veteran provided a history of the inguinal hernia with no current symptoms. It was detailed that the hernia was repaired. The Veteran's treatment plan did not include continuous medication. Upon examination, there was no inguinal hernia detected. The Veteran was noted to have scars but they were not painful, unstable or greater than 6 inches. The hernia condition did not impact the Veteran's ability to work. For the Veteran's ventral hernia, the Veteran had not had surgery; it was present on examination, large and persistent. There was no indication for a supporting belt and the hernia appeared operable and remediable. A positive nexus opinion was provided for the Veteran's post-surgical repair of his left inguinal hernia, but not his ventral hernia. The Veteran was afforded a VA scars examination in May 2012. The Veteran's status post-operative left inguinal hernia repair scar was noted. The scar was not painful or unstable. The scar was linear and 6 x .25 centimeters. The scar did not result in any limitation of function or ability to work. There were no scars of the head, face or neck, no superficial or deep non-linear scars, and no scars due to burns. The Veteran's wife submitted a statement in support of the Veterans claim in January 2015. In January 2015, she observed the Veteran had symptoms of bloat and fullness which affected his appetite. He regularly had episodes of shortness of breath when he was lying or at rest. He had trouble with his bowel moving and was constipated regularly with no remedies for relief. She saw a snake-like bulge protruding from his abdomen, especially when he was lying down. He had trouble sleeping because there were no comfortable positions for him to be in due to pain and shortness of breath. The Veteran had pain along the front side of his pelvic area that could be debilitating, at times. He was issued a band to wear on his stomach to hold the hernia but he couldn't tolerate it due to the fullness of his abdomen and shortness of breath. His symptoms were apparent, ongoing and interrupted sleep and some activities. The Veteran was afforded a VA examination in July 2015. The Veteran was diagnosed with a left inguinal hernia status post repair with residual scar from 1981 and a ventral hernia from July 2015, a status post ventral herniorrhaphy with residual scarring and diastasis rectis. The VA examiner clarified that the Veteran had a new and separate diagnosis of a post-ventral herniorrhaphy. The Veteran reported his left inguinal hernia condition began with abdominal pain in 1981. The condition did not require continuous medication. Upon examination, there was no inguinal hernia detected. The Veteran had scars but they were not painful and/or unstable or greater than 6 square inches. The length and width of the left inguinal scar was 9 x .15 centimeters. The VA examiner remarked that there were no post-surgical inguinal hernia complications on the left side. The hernia condition did not impact the Veteran's ability to work. For the ventral hernia, the examiner noted the Veteran had surgery; the hernia was present on examination described as large with severe diastasis of recti muscles. There was an indication for a supporting belt for the ventral hernia, and was well supported by a truss or belt. The surgical status of the ventral hernia was that it was a recurrent hernia which appeared operable and remediable. The length and width of the ventral hernia scar was 5 x .15 centimeters. The Veteran submitted a statement in March 2016 regarding his condition. He reported his hernias were tender and he had to hold his abdomen and left side to get minimal comfort. Coughing made pain terrible. His stomach and left inguinal was sore and painful. Doctors told him that he may have two hernias present. In March 2016, the Veteran's submitted duplicative statements of observations from her January 2015 statement and that the Veteran experienced tenderness and pain. The Veteran was afforded a VA hernia examination in March 2016 in relation to a service connection claim for an umbilical hernia. The Veteran was diagnosed with a left inguinal hernia status post repair with residual scar from 1981 and status post left inguinal herniorrhaphy with residual scarring from March 2016 and a ventral hernia from 1984 (umbilical herniorrhaphy) and status post ventral herniorrhaphy with residual scarring and diastasis recti from March 2016. In relation to the Veteran's left inguinal hernia, the Veteran reported pain when he coughed in both his left inguinal and ventral region. It was noted that he reported his left inguinal incision "region" was tender to palpation. The Veteran's left inguinal herniorrhaphy was noted. Upon examination, there was no inguinal hernia detected and no indication for support. The Veteran had scars but they were not painful, unstable or greater than 6 square inches. The location and measurements of the two scars found were 8 x .25 centimeters (left inguinal region) and 5 x .15 centimeters (horizontal infraumbilical region). The hernia conditions impacted employment through difficulty lifting and carrying. Throughout the appeal period, VA records are absent any complaints or findings relating to an inguinal hernia. The Board observes that the Veteran was treated for an umbilical, ventral and hiatal hernias, which have not been shown to be part of the inguinal hernia. See e.g., VA treatment records dated June 3, 2011 (problems list, hiatal and ventral hernia from January 9, 2015 (ventral hernia). Complaints associated with the non service-connected ventral hernia included insomnia, persistent abdominal bloating and pain. Analysis The Veteran's post-operative residuals of a left inguinal hernia with scar do not meet the criteria for a higher, 10 percent rating under DC 7338. VA examinations have not found any recurrence of the Veteran's inguinal hernia; VA outpatient treatment records through do not show any complaints or findings relating to an inguinal hernia; therefore, in the absence of a recurrence of the hernia following repair, a higher rating for residuals of a left inguinal hernia is unwarranted. As for the residual scar, the weight of evidence reflects, the post-operative residuals of a left inguinal hernia scar has not been manifested by a superficial scar of an area of 6 inches or greater, by an unstable or painful scar, or by functional limitation. In this regard, all VA examinations in May 2012 (scar), May 2012 (hernia), July 2015 (hernia) and March 2016 (hernia) reflect that the Veteran's inguinal scar is less than 6 square inches, linear, non-painful and stable. The VA scar examiner from 2012 specifically indicated there was no limitation of function due to the scar. Although the Veteran has described pain and tenderness of the inguinal hernia incision "region," there is no indication the Veteran has ever referenced the pain or tenderness in the scar itself. Regardless, the Board affords more probative weight to the medical evidence of record. As such, a higher rating under DC 7801-7805 is unwarranted. The Board notes that the Veteran's symptoms regarding the ventral and hiatal hernias are not for consideration as the conditions are not service-connected. The Board has considered the Veteran's and his wife's lay statements which includes complaints of pain in his left inguinal incision region and other complaints such as disturbed sleep, abdominal discomfort, trouble with pain when coughing, and trouble with pain when tying shoes. The Board recognizes that a lay person is competent to describe what comes to him or her through the senses, such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Veteran can assert that the symptoms associated with his disorder are more disabling. However, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). While the Veteran asserts that his service-connected post-operative residuals of a left inguinal hernia with scar is more severely disabling, the Board observes that the findings on VA clinical examinations do not demonstrate more significant symptomatology evidencing a more severe disability in this regard. Further, to the extent the Veteran's and his wife's statements are related to pain in his abdomen, the Board observes that this is an entirely different anatomical area than where his service-connected inguinal hernia is located. Thus, many symptoms in the abdominal area are associated with the Veteran's non service-connected ventral hernia condition, which is located in his mid-abdomen area. The Board concludes that the observation of a skilled professional is more probative than his lay statement. In evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Consideration has been given to assigning staged ratings for his; however, at no time during the period in question have the disabilities warranted more than the ratings discussed above. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected post-operative residuals of a left inguinal hernia with scar, are inadequate. A comparison between the level of severity and symptomatology of the Veteran's service-connected disability- left inguinal hernia region pain- with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There has been no indication that the Veteran's condition has recurred or impacted his ability to work and there is no evidence in the medical records of an exceptional or unusual disability picture. In this regard, the Board notes that the March 2016 VA examination indicated an impact of the hernia condition on the Veteran's ability to work, as self-reported by the Veteran. However, this 2016 examination was conducted for the purposes of evaluating a separate umbilical hernia condition and in the previous two VA examinations from May 2012 and July 2015, conducted for the purposes of evaluating the residuals of inguinal hernia on appeal, it was specifically indicated there was no impact on employability. Significantly, the July 2015 VA examiner stated there were no complications of the post-surgical left inguinal hernia. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. For the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against a finding that a compensable rating for post-operative residuals of a left inguinal hernia with scar, is warranted. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER Entitlement to a compensable rating for post-operative residuals of a left inguinal hernia with scar is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs