Citation Nr: 1803676	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  16-45 111	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an initial compensable disability rating for a service-connected inguinal hernia, status post herniorrhaphy.  

2.  Entitlement to a total disability rating based on individual unemployability based on service-connected inguinal hernia, status post herniorrhaphy (TDIU).  


REPRESENTATION

Veteran represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

Steve Ginski, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1958 to February 1962.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system.  LCM contains complete VA treatment records up through July 2016.  Otherwise, LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal.

The Veteran indicated in his November 2015 Notice of Disagreement (NOD) that he is unable work as a result of his hernia.  As such, it follows that a request for a total disability rating based on individual unemployability (TDIU) was reasonably raised.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (providing that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability).  An August 2016 Deferred Rating Decision documents the RO documents that the Veteran would be contacted to ask whether he is intending to file a claim for a TDIU.  A February 2017 Report of General Information documents a telephone call between a VA employee and the Veteran.  During the call, the Veteran indicated that he wished to apply for a TDIU.  The day after the telephone call, the Veteran was sent an application for a TDIU.  To date, a completed application for a TDIU has not been received.  Despite this separate action for the Veteran's claim of entitlement to a TDIU, the Board finds that the Veteran's claim of TDIU is part and parcel of the increased rating claim.  Therefore, the issue of entitlement to TDIU is also on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The objective evidence does not demonstrate an inguinal hernia during the appeal period.  


CONCLUSION OF LAW

The criteria for a compensable evaluation for service-connected inguinal hernia, status post herniorrhaphy, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7338 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. 
§ 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, 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 (2017).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2017). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999). 

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

Under Diagnostic Code 7338 (hernia, inguinal), a small inguinal hernia, reducible, or without true hernia protrusion, is rated as noncompensable.  An inguinal hernia that is not operated, but is remediable, is also rated as noncompensable.  A post-operative recurrent inguinal hernia, readily reducible, well-supported by truss or belt, is rated 10 percent disabling.  A small inguinal hernia, post-operative recurrent, or unoperated irremediable, not well-supported by truss, or not readily reducible, is rated 30 percent disabling.  A large inguinal hernia, post-operative recurrent, not well-supported under ordinary conditions and not readily reducible, when considered inoperable, is rated 60 percent disabling.  38 C.F.R. § 4.114.

The Veteran submitted a claim of entitlement to service connection for a hernia in the groin area in June 2015.  

By way of history, the Veteran's service treatment records document a diagnosis of right inguinal hernia.  Post-service, almost 40 years later, he underwent a right side herniorrhaphy in October 1998.  Due to recurrences, the Veteran underwent two subsequent herniorrhaphy procedures in July 2002 and August 2002.  The two subsequent surgeries involved mesh placement.  Subsequent VA treatment records through 2016 do not document a recurrence of the Veteran's right inguinal hernia.   

VA provided an examination in September 2015.  The examiner documented the history detailed above and reiterated that the Veteran's hernia had not recurred since 2002.  The Veteran reported that his right lower quadrant at the site of the surgeries would experience intermittent discomfort or strain.  The Veteran was limited from carrying heavy things and doing activities that required pushing or pulling.  On clinical examination, no hernia was detected.  Further, there was no indication for a supporting belt.  Regarding functional impact, the examiner reiterated that the Veteran was limited from carrying heavy things and doing actives that require pushing or pulling.  

In his October 2015 Notice of Disagreement (NOD), the Veteran contended that the evidence showed a postoperative recurrent hernia, as he had undergone three surgeries to treat his inguinal hernia.  Reportedly, since his hernia repair, he had been unable to work, and his surgeon had directed him not to lift weights as low as 10 pounds from the floor.  The Veteran indicated that he could not bend because the mesh implanted in his abdomen produces pain that prevented him from performing any job.  

As noted above, VA treatment records do not document the recurrence of his hernia during the appeal period.  Indeed, recent treatment records, though documenting the medical history pertaining to the herniorrhaphies conducted in 2002, do not discuss symptoms of the Veteran's service-connected disorder.  In short, the evidence is consistent with the September 2015 VA examination, in which no hernia was detected on clinical evaluation.  

Present symptoms of the Veteran's service-connected hernia status post herniorrhaphy procedures include his inability to lift heavy objects and perform activities involving pushing and pulling.  The Board has also accepted the Veteran's statement that he has difficulty with bending because of the mesh surgically implanted during herniorrhaphies in 2002.  This statement is consistent with the 2015 VA examination findings that the Veteran was unable to lift heavy objects.  

After a thorough review of the record, however, the Board finds that the preponderance of the evidence is against the award of a compensable disability rating.  First, the Board finds that the diagnostic criteria listed in Diagnostic Code 7338 are the appropriate criteria for evaluating the Veteran's claim.  See Copeland v McDonald, 27 Vet. App. 333 (2015).  The Veteran's inguinal hernia status post herniorrhaphy does not meet the criteria for a compensable disability rating under Diagnostic Code 7338.  In short, the VA examination did not show the presence of a hernia.  Thus, while the inguinal hernia may have been postoperative recurrent in 2002, it is no longer in that status.  It is not recurrent.  Further, the VA examiner found no indication for a supporting belt for the Veterans' service-connected condition.  Because the VA examiner did not detect a hernia on examination, a compensable rating under Diagnostic Code 7338 is not warranted.  The Veteran's appeal is denied.  

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

A compensable initial rating for the Veteran's service-connected inguinal hernia, status post herniorrhaphy, is denied.  


REMAND

As noted in the Introduction, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is whether a total rating based on a TDIU as a result of that disability is warranted.  Rice, 22 Vet. App. 447.  No development has been undertaken for a claim of entitlement to a TDIU.  The Board acknowledges that the Veteran's only service-connected disorder is rated as noncompensable.  Nonetheless, the RO should develop a claim for a TDIU.


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Develop and adjudicate the Veteran's claim for entitlement to TDIU.  38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009).

2.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter 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 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs