Citation Nr: 1804891 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 17-16 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been submitted to re-open a claim for service connection for degenerative disc disease, status post laminectomy and lumbar strain (previously diagnosed as herniated intervertebral disc). 2. Entitlement to an evaluation in excess of 10 percent for service-connected residuals, bilateral inguinal hernia. 3. Entitlement to an evaluation in excess of 10 percent for scars, bilateral inguinal hernia, status-post surgery. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1954 to June 1962. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in St. Petersburg, Florida. Jurisdiction has since resided with the RO in Lincoln, Nebraska. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) (formerly Virtual VA) electronic claims files. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A November 1964 Board decision denied the claim of service connection for lumbosacral sprain and the post-operative residuals of a herniated intervertebral disc, holding that a back disorder pre-existed service, there was no aggravation in service and disc pathology was not shown until after service. By Board decision of December 1982, it was held that new and material evidence had not been received and the claim remained denied. This is the last final denial on any basis. 2. The evidence received since the December 1982 Board decision, by itself, or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for degenerative disc disease, status post laminectomy and lumbar strain (previously diagnosed as herniated intervertebral disc). 3. The medical evidence indicates that the Veteran's residuals of a bilateral inguinal hernia are post-operative recurrent, readily reducible and well supported by truss or belt. 4. The medical evidence indicates that the Veteran has two scars from a bilateral hernia operation, which are painful, but neither of which are unstable. CONCLUSIONS OF LAW 1. The December 1982 Board decision is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (a) (2017). 2. Evidence received since the November 1964 Board decision in connection with Veteran's claim of entitlement to service connection of degenerative disc disease, status post laminectomy and lumbar strain (previously diagnosed as herniated intervertebral disc) is not new and material and the petition to reopen is denied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for an increased disability rating for service-connected residuals, bilateral inguinal hernia, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.114, Diagnostic Code 7338 (2017). 4. The criteria for an initial rating in excess of 10 percent for scars, bilateral inguinal hernia, status post surgery, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. The Veteran was afforded his most recent Compensation and Pension examinations in December 2007 and January 2013. Both resulted in findings and opinions pertinent to deciding the claims for entitlement to increased disability ratings. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the findings adequate for their purposes and neither the Veteran nor his representative 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 duty to assist argument). Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's Assertions The Veteran contends that medical statements previously submitted to the RO constitute new and material evidence to reopen the claim for service connection for his back disorder and the RO did not properly consider and discuss them in its rating decision. He adds in numerous statements that his back disorder was worsened beyond its natural progression by his in-service duties as a medic of lifting patients in and out of beds and chairs and that because of this he was in fact hospitalized during service for further injury to his back. The Veteran also contends in a January 2008 statement that the residuals of his hernia disorder are worsening, as indicated when lifting and defecating and his scars continue to remain visible and painful. New and Material Evidence In general, Board or rating decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). A September 1962 rating decision denied the claim of service connection for postural lordosis of the lumbar spine and the Veteran did not perfect a timely appeal with respect to this issue. A November 1963 rating decision addressed the claim a second time, effectively reopening it, and specifically looked to whether duties in service had "increased" the pre-service level of the Veteran's back disorder. The November 1963 rating decision did not find any significant "increase" in the pre-service level of the back disorder. The matter came before the Board in November 1964 as a claim that the Veteran's back disorder was aggravated by service. The Board found the evidence insufficient to establish that claim. The record indicates that rating decisions from February 1976, July 1981 and October 1981 found that the Veteran had not submitted new and material evidence sufficient to reopen the claim. In a decision of December 1982, the Board found that there had been no new and material evidence offered and that its November 1964 decision denying service connection for lumbosacral sprain and the post-operative residuals of a herniated intervertebral disc is final. The RO denied reopening the Veteran's claim in a December 1999 rating decision, based on the failure to submit new and material evidence. That matter was the subject of a statement of the case and a timely appeal that appears to have remained open. Regardless of what the RO has determined with respect to new and material evidence, the Board must now make its own determination, as this in turn establishes the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). The Veteran has referred to several medical statements, to include a May 1999 medical statement of Dr. D.G., a June 1999 medical statement of Dr. A. and a September 1999 medical statement of Dr. R.M.V. Dr. D.G. stated that "[i]n my medical opinion, it is possible that the patient's back disability may have resulted from his active duty injury." Dr. A. stated that "[i]t is possible that [the Veteran's chronic back pain due to degenerative joint disease] could have been exacerbated by prior trauma-over use injury." Dr. R.M.V. stated: "[The Veteran's condition could have been aggravated by military service." None of the statements provides further explanation. The Veteran has asserted in his January 2000 Statement in Support of Claim that the June and September 1999 medical statements were not referenced in the December 1999 rating decision. The appear to have been considered and the Board notes that these statements are similar to April and September 1964 medical statements by Dr. F.B.J and T.P.M., considered by the Board in its December 1982 decision. In fact, the Board then had in turn considered the statement of Dr. T.P.M. essentially to be a duplicate of the statement he submitted in November 1964. The statements of Drs. A. and R.M.V offer no more than reassertions of service connection based on the aggravation of a pre-existing condition. Additionally, the May 1999 medical statement of Dr. D.G also revisits the contention of aggravation of a pre-existing back disorder, already addressed by the Board in December 1982 and the rating decision in December 1999. Moreover, as the Veteran concedes in his January 2000 Statement in Support of Claim, under the section of the December 1999 rating decision headed "Evidence," the June 1999 and September 1999 medical statements are in fact identified by date. This indicates that they had been reviewed and considered with the other relevant evidence listed. In other words, this evidence had been of record at the time of the December 1999 rating decision, it was seen and considered and it provided no new factual basis and was not material in nature to present a reasonable possibility of substantiating the Veteran's claim. Therefore, the Board, finds that no new and material evidence has been received showing that there may be a relationship between the Veteran's current back disorder and in-service events and injuries. As the above evidence does not raise a reasonable possibility of substantiating the claim, it does not satisfy the criteria of 38 C.F.R. § 3.156 (a) for new and material evidence and the claim is not reopened. Inguinal Hernia The Veteran's service-connected residuals, bilateral inguinal hernia is rated under Diagnostic Code 7338. Under DC 7338, 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. Pertinent to the Veteran's claim, a Note to Code 7338 provides that 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. The record contains findings by VA examiners in August 1962, March 1963 and September 1963 variously noting pain in the right groin, a reducible bulge, a soft abdomen with no masses, no tenderness, and no further signs of a hernia. However, the Board's concern is with the most recent findings indicating the current severity of the Veteran's hernia for a determination of the appropriateness of a disability rating beyond 10 percent. In January 2013, the Veteran underwent an in-person VA examination for hernia, in which the VA examiner stated the Veteran's diagnosis as inguinal hernia. The January 2013 VA examiner, first noting surgery on both sides had been performed, did not find evidence of a true hernia protrusion on either the right or left side. He noted that the hernia was readily reducible on both the right and left and found there was an indication for a supporting belt, noting the hernia can be well supported by truss or belt on both the right and left. Subsequently, in recognizing clear and unmistakable error in initially assigning a 0 percent disability rating, the April 2013 rating decision granted a higher evaluation of 10 percent, based on the above findings. Based on the foregoing, the higher rating of 30 percent under Diagnostic Code 7338 cannot be applied, as no findings in the record indicate that the Veteran's hernias are post-operative recurrent or unoperated irremediable and are not well-supported by truss or not readily reducible. Scars from bilateral inguinal hernia The Veteran's scars are rated under Diagnostic Code 7804, as painful or unstable scars. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is applicable for three or four scars that are unstable or painful. A 30 percent rating will be assigned for five or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7891, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118. As with the Veteran's hernia disorder, the record contains findings from August 1962, March 1963 and September 1963 VA examinations, which include that the scars are well healed, without adherence, no tissue loss, no evidence of recurrence, no evidence of neuromas, and not painful. Additionally, the record provides more recent examinations. Findings in a December 2007 VA examination noted the surgical origin of the Veteran's hernia scars and that the hernias had been operated on three times since 1962. The December 2007 VA examiner diagnosed the Veteran with "superficial scar of herniorraphy." He further noted that the scar itself is not painful, there is intermittent pain in the inguinal region and again emphasized that there is no pain in the scar. In January 2013, the Veteran underwent an in-person VA examination for scars, in which the VA examiner stated the Veteran's diagnosis as surgical scars, with residuals. The January 31, 2013 VA examiner noted two scars, which showed "mild tenderness on firm palpation." He further noted that the scars are located on the anterior trunk, are linear and measure 6.5 centimeters long and 6 centimeters long respectively. He added that, although painful, the scars are not unstable, with any frequent loss of covering of skin over the scars and the scars do not result in a limitation of function. The foregoing findings establish there are only two scars, allowing only for the 10 percent rating under Diagnostic Code 7804, and neither of the scars was found to be unstable, making inapplicable the additional 10 percent rating available under Note (2) of the diagnostic code. Conclusion The Board has carefully reviewed and considered the Veteran's numerous statements, to include the statement accompanying his March 2017 VA Appeals Form 9 and his August 2014 Notice of Disagreement; his October 2012 Statement in Support of Claim; the statement accompanying his October 2012 Authorization for Release form; and his January 2008, May 2001 and January 2000 Statements in Support of Claim, all of which have assisted the Board in better understanding the nature and development of the Veteran's disorders. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, he is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to diagnose or interpret accurately the nature of his hernia and scar disorders, as this requires highly specialized knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record. In the absence of explicit indications of worsening signs and symptoms, it must rely on medical findings and opinions to establish the level of the Veteran's current disability. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the reasons stated and based on the findings and diagnoses of the January 2013 VA examiner, the Board finds the record does not contain supporting medical findings, an adequate opinion or related factors to demonstrate the criteria for disability ratings under Diagnostic Codes 7338 and 7804 beyond 10 percent for hernia and scars, respectively or which indicate that the assigned rating schedules for hernia and scars at 10 percent are inadequate and do not reasonably contemplate the level of severity and symptomatology of the Veteran's service-connected disabilities. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER The application to reopen a claim for service connection for degenerative disc disease, status post laminectomy and lumbar strain (previously diagnosed as herniated intervertebral disc) on the basis of new and material evidence is denied. Entitlement to an evaluation in excess of 10 percent for service-connected residuals, bilateral inguinal hernia, is denied. Entitlement to an evaluation in excess of 10 percent for scars, bilateral inguinal hernia, status-post surgery, is denied. REMAND The record indicates that the Veteran has not yet had VA examinations for hearing loss or for tinnitus. The RO's February 2017 Statement of the Case (SOC) stated that, although examinations were scheduled, the Veteran did not respond to the medical center's letter which sought to schedule the Veteran for the examinations and, consequently, both examinations were not conducted. However, the Board notes that the record contains an August 2012 Statement in Support of Claim, submitted by the Veteran's former representative, in which he informs the RO that the Veteran is under care at a nursing home and thereby now residing at a new address. Furthermore, in an August 2017 Statement in Support of Claim, the Veteran's successor representative states that the Veteran had been diagnosed with senile dementia some time ago and he added that the Veteran will need assistance with his claims. The Board agrees. Based on the above information, either a new address or difficulties in managing his affairs or both may easily provide plausible reasons as to why the details of the maintenance of his claims might have eluded the Veteran's grasp. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). However, the Board will prompt VA to assist when difficulties are in evidence and when assistance is sought directly, as in the representative's August 2017 statement, above. For all of these reasons, there must be new VA examinations scheduled for hearing loss and tinnitus. 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. Contact the Veteran's representative and/or the Veteran himself for information pertaining to any current treatment for hearing loss and tinnitus at any VA facility and by any private treatment provider. Obtain any records pertaining to those treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran's representative and/or that of the Veteran should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, with the assistance of the Veteran's representative, schedule the Veteran for an examination or examinations for hearing loss and tinnitus with an examiner with the appropriate specialty to make findings pertaining to hearing loss and tinnitus. The complete electronic claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all audiological findings. All indicated tests should be accomplished and all findings reported in detail. The examiner is further requested to render opinions, addressing: Whether is at least as likely as not (a probability of at least 50 percent) that any identified hearing loss is etiologically related to service. Whether is at least as likely as not (a probability of at least 50 percent) that any identified tinnitus is etiologically related to service. The examiner should provide a rationale explaining the basis for the opinions. Findings should be reconciled with other records on file to the extent possible. If an opinion cannot be made without resort to speculation, that examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the above development and any other indicated development, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board. 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). 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs