Citation Nr: 1801526	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-09 948	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for inguinal hernia residuals other than a scar.

2.  Entitlement to an initial compensable rating for a residual inguinal hernia scar.

3.  Entitlement to service connection for a cervical spine disability.

4.  Entitlement to service connection for a right hip disability.

5.  Entitlement to an initial compensable rating for pes planus.


REPRESENTATION

Veteran represented by:	The American Legion




WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

S. S. Mahoney, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Army from June 1976 to March 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2010 and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia.  Jurisdiction over the appeal has since been transferred to St. Petersburg, Florida RO.

In July 2017, the Veteran testified before the undersigned Veterans Law Judge.  A hearing transcript is of record.

The issue of entitlement to service connection for inguinal hernia residuals other than a scar, cervical spine and right hip disabilities, and an initial compensable rating for pes planus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's residual inguinal hernia scar is painful but not unstable.


CONCLUSIONS OF LAW

The criteria for an initial 10 percent rating for a residual inguinal hernia scar are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7802, 7804 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Initial Compensable Rating for a Residual Inguinal Hernia Scar

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  If two disability ratings are potentially applicable, the higher evaluation 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.  Reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

The Veteran's inguinal hernia scar is currently noncompensable pursuant to 38 C.F.R § 4.118, DC 7802.  Scars are evaluated under 38 C.F.R § 4.118, DCs 7800-7805.  Here, 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 compensable rating requires the scar to cover at least 39 square centimeters (cm).  
The February 2010 VA examination report noted a 12 cm by 0.25 cm linear scar that was superficial.  The May 2010 VA examination reported noted a 10 cm by 0.25 cm scar that was also linear and superficial.  The December 2010 VA examination report noted an 11.5 cm by 0.5 cm scar that was linear and deep.  Although the December 2010 examiner described the scar as deep, given the findings regarding the size of the Veteran's scar, coupled with the findings of the February 2010 and May 2010 examiner's description that the scar is linear and superficial, a 10 percent rating under DC 7801 is not warranted.

A compensable rating is not available under DC 7802, which addresses scars not of the head, face, or neck that are superficial and nonlinear in an area of at least 929 square centimeters, because of the length and size of the scar. 

DC 7804 applies to scars that are unstable or painful.  A 10 percent rating is warranted for one or two scars that are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable or painful.  A 30 percent is warranted for five or more scars that are unstable or painful.  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. 

The Veteran has a single service-connected scar associated with his inguinal hernia.  There has been no skin breakdown over the scar or pain noted upon examination.  See February 2010, May 2010, and December 2010 VA examination reports.  However, at the December 2010 VA examination, the Veteran reported scar pain.  At his July 2017 Board Hearing, he testified that his hernia scar is painful from the inside and feels like a pinching or a sharp lightening pain.  See Board Hearing Tr. at 6-7.  He also testified that he can feel the scar tissue when he pulls or bends, and that it sometimes crusts over like a scab, which causes itching and pain.  Id.

The Board finds that an initial 10 percent rating is warranted under DC 7804 for the entire appeal period based on the Veteran's competent and credible reports of scar pain.  A rating in excess of 10 percent is not warranted as there is no evidence that the inguinal hernia scar is both painful and unstable or that the Veteran has multiple associated scars.  See 38 C.F.R. § 4.118, DC 7804.

Finally, a rating under DC 7805 is not available.  DC 7805 covers other disabling effects not considered in a rating provided under DCs 7800-7804.  The Veteran's service-connected scar has not been associated with any limitation of motion or other loss of function.  See February 2010, May 2010, and December 2010 VA examination reports.  


ORDER

An initial 10 percent rating for a residual inguinal hernia scar is granted for the entire appeal period. 


REMAND

Remand is warranted for the Veteran's claims of entitlement to service connection for cervical spine and right hip disabilities, because the August 2017 private nexus opinion is inadequate.  Specifically, the physician did not consider or address the Veteran's relevant service treatment records or include sufficient rationale for his positive opinion.  Further, the April 2014 opinion regarding the right hip secondary to pes planus is also inadequate, as it is speculative.  Additionally, the unfavorable VA opinions do not adequately consider the Veteran's in-service injuries.  Therefore, an addendum opinion is needed.  

The Veteran testified that his pes planus has worsened since his last VA examination, which was in December 2010.  See Board Hearing Tr. at 16-17.  As such, a remand is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his pes planus.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  Any outstanding treatment records should also be secured.  As these records could demonstrate the presence of inguinal hernia residuals other than a scar, action on that claim is deferred.


Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding VA treatment records.

2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records.

3. Then obtain an addendum opinion from a VA examiner addressing the etiology of the Veteran's cervical spine and right hip disabilities.  No additional examination is necessary, unless the examiner determines otherwise.  Following a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that:

(a) the Veteran's cervical spine disability had its onset in service or is otherwise related to service, to include as a result of: (1) the documented June 1977 fall down steps, (2) the May 1984 assessment of limited range of motion and herniated cervical spine following a motor vehicle accident therein, and/or (3) the cumulative effects of multiple impacts from hard helicopter landings (please note that the Veteran had incurred a total of 159 flight hours by June 1982).

(b) the Veteran's hip disability had its onset in service or is otherwise related to service, to include as a result of: (1) the documented June 1977 fall down steps, (2) the August 1978 motorcycle accident, and/or (3) the cumulative effects of multiple impacts from hard helicopter landings (please note that the Veteran had incurred a total of 159 flight hours by June 1982).

(c) the Veteran's hip disability is proximately due to his service-connected pes planus; or

(d) the Veteran's hip disability has been aggravated (permanently worsened) by his service-connected pes planus.

In addressing these questions, please consider and address the Veteran's testimony that his disabilities are due to the overall cumulative impacts of being in several motor vehicle accidents, falling down steps, and sustaining injuries in-service such as hard landings associated with his flight status duty.  See Board Hearing Tr. 3-6.

A complete rationale for all opinions must be provided.  If the examiner cannot provide an opinion without resort to speculation, it is essential that the examiner explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.).

4. Then schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected pes planus.  The claims file should be made available to and be reviewed by the examiner, and all necessary tests should be conducted.  

5. Then, after taking any additional development deemed necessary, readjudicate the issues on 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).

These claims 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. §§ 5109B, 7112 (2012).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs