Citation Nr: 1752843 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-01 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 20 percent for status post bilateral inguinal hernia repair with post-operative groin pain and neuralgia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1995 to June 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Region Office (RO). The Veteran and V. B., a witness, testified at a hearing before a Decision Review Officer in November 2011. A copy of the transcript is associated with the evidentiary record. In September 2016, the Board remanded the Veteran's case to the RO to reschedule a videoconference hearing. The Board finds there has been substantial compliance with its September 2016 remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In October 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. The case returns for appellate review. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's postoperative right inguinal hernia caused difficulty in bending and inability to wear tight belts or tight fitting clothing. 2. For the entire period on appeal, the Veteran's postoperative right inguinal hernia was small, recurrent, not supported by truss, and was not readily reducible. CONCLUSION OF LAW For the entire period on appeal, the criteria for a 40 percent disability rating, but not higher, for a status post bilateral inguinal hernia repair with post-operative groin pain and neuralgia have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.114, Diagnostic Code (DC) 7338 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has adopted a Schedule for Rating Disabilities to evaluate service connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321 (2017); see generally 38 C.F.R. § Part IV (2017). 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 (2017). 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. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 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 (2017). 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 (2017). 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 (2017); see also 38 C.F.R. § 3.102 (2017). 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. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). Disabilities of the hernia, inguinal are rated under DC 7338. See 38 C.F.R. § 4.114, DC 7338 (2017). 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. Where there is bilateral involvement, 10 percent will be added, provided the second hernia is compensable. 38 C.F.R. § 4.118, DC 7338. Here, the Veteran asserts that he is entitled to a disability rating in excess of 20 percent for his service-connected status post bilateral inguinal hernia repair with post-operative groin pain and neuralgia. Turning to the evidence of record, the Veteran underwent two VA examinations in May 2009. At the first, Dr. Sunil Sinha's physical examination revealed numb scars from bilateral inguinal hernia repair that tingled to light touch. The scars were painful on deep pressure, which Dr. Sinha noted indicated some underlying tissue tenderness. Dr. Sinha found that the scars did not by themselves cause limitation of motion or function. The Board gives Dr. Sinha's determination little weight because it is inconsistent with the other evidence of record showing the Veteran's inability to walk or stand for long periods of time, difficulty bending, and inability to wear tight belts or tight fitting clothing. See Dr. Greg Tampus's November 2011 independent medical examination; see also Dr. Ted Houk's November 2011 opinion. At the second VA examination with Dr. Robert Burger, hernia recurrence was not felt upon physical examination. Dr. Burger noted that the Veteran seemed "to be a cripple because of pain." Dr. Burger could not explain the Veteran's severe pain and advised the Veteran to see a general surgical compensation and pension physician. Because Dr. Burger deferred to the expertise of another physician, the Board finds Dr. Burger's findings of little probative value. The Veteran's private medical provider, Dr. Houk, rendered an opinion in August 2011 noting that the Veteran's right inguinal hernia recurred and was unsupported by a truss or belt. In a November 2011 opinion, Dr. Houk noted the longevity of his treatment beginning prior to enlistment. He again noted that the Veteran's right inguinal hernia is recurrent and unsupported by a truss or belt. Dr. Houk also noted that the Veteran experiences symptoms of pain, numbness, tingling, loss of full range of motion, inability to run, and inability to walk or stand for long periods of time. After reviewing the Veteran's service treatment records from August 2000 through November 2000, Dr. Houk opined to the same in an addendum. Namely, he opined that the Veteran has a recurrent right inguinal hernia that is not well supported by a truss or belt. He further opined that these conditions have existed since service. Dr. David Greco, the Veteran's hernia repair physician, provided a hernia opinion in November 2011 and noted that the Veteran has had multiple complications due to hernia repairs. The Board gives significant probative weight to Dr. Greco's determination because the evidence of record is consistent with his findings and shows numbness of scars, pain with pressure over scars, inability to walk or stand for long periods of time, and inability to wear tight fitting clothing. See May 2009 VA examination; Dr. Tampus's November 2011 independent medical examination; Dr. Houk's November 2011 opinion. In November 2011, an independent medical examiner, Dr. Tampus, determined that the Veteran had difficulty bending and an inability to wear tight belts or tight fitting clothing. Dr. Tampus diagnosed inguinal hernia, determined that the Veteran had three painful scars on the trunk or extremities, and determined that the right inguinal hernia was recurrent. Dr. Tampus also determined that there was no inguinal hernia at the time of examination, but, found that the Veteran's condition remained active. The Board gives significant probative weight to Dr. Tampus's findings that the Veteran is unable to wear tight fitting clothing and has a right recurrent inguinal hernia because it is supported by the evidence of record. See Dr. Houk's November 2011 opinion; see also Dr. Houk's November 2012 opinion. Dr. Houk provided a final opinion in November 2012. He noted that he is currently treating the Veteran for a variety of symptoms arising from his multiple hernias and surgeries. He determined that the Veteran has bilateral hernias. Dr. Houk once again opined that the Veteran's right side is small, postoperative, and recurrent and that both sides are not well supported by a truss or belt. The Board gives significant probative weight to Dr. Houk's August 2011, November 2011, and November 2012 opinions because there are consistent with other opinion evidence of record opining that the Veteran is unable to wear tight fitting clothing, lending support to the proposition that the Veteran's hernia is not supported by truss or belt because he cannot wear tight fitting clothing. See Dr. Tampus's November 2011 opinion. Dr. Houk's opinions are also consistent with the Veteran's reports of scar tissue from multiple hernia surgeries and consistent with physical examinations revealing pain to deep pressure over surgical scars, lending support that the hernia is not readily reducible. See November 2011 informal hearing; October 2016 hearing testimony (where the Veteran testified that he does not wear a truss because it did not work, his right side hernia is not readily reducible, and it is inoperable because of scar tissue damage); see also May 2009 VA examinations (where the Veteran was reported as a cripple due to pain, and where examination revealed pain upon pressure over his scars); see also Dr. Greco's November 2011 opinion (where Dr. Greco reported multiple complications due to the hernia repairs). Furthermore, Dr. Houk's finding that the Veteran's right inguinal hernia is recurrent is supported by Dr. Tampus's opinion. See Dr. Tampus's November 2011opinion (where Dr. Tampus determined the Veteran's hernia was recurrent). Accordingly, the Board finds that a 30 percent rating is warranted for his recurrent right inguinal hernia. Moreover, because there is bilateral involvement, the Board finds that an additional 10 percent rating is warranted. Given this bilateral factor, the Board finds that a 40 percent rating is warranted beginning August 11, 2010. A rating in excess of 40 percent is not warranted as the evidence does not support a large hernia. To the contrary, Dr. Houk determined that the Veteran's hernia was small. See Dr. Houk's November 2012 opinion. Accordingly, the weight of the evidence favors granting a rating higher than 20 percent, but not greater than 40 percent for the Veteran's service-connected bilateral inguinal hernia for the entire appeal period forward. ORDER For the period beginning August 11, 2010, entitlement to a 40 percent disability rating, but not higher, for status post bilateral inguinal hernia repair with post-operative groin pain and neuralgia is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs