Citation Nr: 18145766 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-09 083 DATE: October 30, 2018 ORDER Entitlement to an initial compensable evaluation for a right inguinal hernia repair is denied. Entitlement to a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities is granted. FINDING OF FACT The Veteran has no detectable inguinal hernia from his previous right inguinal hernia repair, but does have a lifting restriction to no more than 10 pounds. CONCLUSION OF LAW 1. The criteria for an initial compensable rating for right inguinal hernia repair have not been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. § 4.114, Diagnostic Code 7338 (2018). 2. The criteria for a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 3.102, 3.324. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1966 to July 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge in January 2015. A transcript of that hearing is of record. This matter was previously before the Board in July 2015, at which time the Board remanded the issues currently on appeal for additional development. The case has now been returned to the Board for further appellate action. The Board notes that a March 2018 rating decision assigned a separate noncompensable rating for the Veteran’s right inguinal hernia scar and denied entitlement to a 10 percent rating based on multiple nonservice connected disabilities under 38 C.F.R. § 3.324. While the Veteran has not appealed that decision, the Board finds the issue of entitlement under 38 C.F.R. § 3.324 is inextricably intertwined with the issue of an increased rating for the right inguinal hernia repair, and will take jurisdiction over that issue. As the Board is granting entitlement under 38 C.F.R. § 3.324, the Veteran is not prejudiced by inclusion of that issue in the appeal. The issues of entitlement to service connection for a left inguinal hernia and an earlier effective date for the award of service connection for the right inguinal hernia status post repair have been raised by the record, respectively, in June 2012 and July 2013 statements, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). 1. Entitlement to an initial compensable evaluation for a right inguinal hernia 2. Entitlement to 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities The Veteran’s service-connected bilateral inguinal hernia is currently rated as non-compensable under 38 C.F.R. § 4.114, Diagnostic Code 7338. Under Diagnostic Code 7338, a non-compensable evaluation is appropriate if the hernia is small, reducible, or without true hernia protrusion; or where it is not operated, but remediable. A 10 percent evaluation is warranted if a hernia is postoperative recurrent, readily reducible and well supported by truss or belt. A 30 percent evaluation is warranted for a small, postoperative recurrent hernia, or unoperated irremediable hernia that is not well-supported by truss, or not readily reducible. A maximum schedular evaluation of 60 percent is warranted for a large, postoperative recurrent hernia that is not well-supported under ordinary conditions and not readily reducible, when it is considered inoperable. It is noted that the Veteran’s service-connected disability stems from a right inguinal hernia diagnosed in service, which was first surgically repaired in or around 1976. To date, the right hernia has not recurred. The Veteran contends that a compensable rating is warranted because his previous hernia repair prevents him from being able to lift more than 10-15 pounds without pain and soreness, and that the surgical repair performed after discharge left him with residual pain, particularly in cold weather. At a March 2013 VA examination, the Veteran reported the onset of the right inguinal hernia to the late 1960’s. At the time, the Veteran reported stiffness and soreness in the right groin which improves over the course of the day. The examiner documented a 1976 surgical repair of a right sided hernia. Upon examination, there was no right-sided hernia detected; nor was there indication for any supporting belt required. The examiner observed the Veteran’s scar, status post hernia repair, but documented that the scar was not painful or unstable, nor was the total area of scarring greater than 39 sq.cms. The scar was measured at approximately 6 cm in length and was observed to be faint. There was no noted pain, tenderness, or breakdown. At the time, an additional umbilical hernia was noted. The examiner found the Veteran’s hernia conditions did not impact his ability to work. In a May 2013 VA opinion, the examiner noted a VA medical center visit in in May 2013 where the Veteran reported a history of a right and left inguinal hernia repair, with new onset of an umbilical hernia over the last few months. In subsequent general surgery notes, a small reducible umbilical hernia was noted, but, that there had been no recurrence of either the left or right inguinal hernia. The examiner explained that ventral hernias result from defects in the abdominal wall, and can develop as a result of prior surgery, or spontaneously as in the case of umbilical hernias. She elaborated that umbilical hernias are associated with obesity, abdominal distension, and ascites. The examiner opined that the Veteran’s umbilical hernia was less likely as not proximately due to or the result of his service-connected inguinal hernia. At a February 2017 VA examination, the Veteran relayed the prior history of an open repair of a right hernia in 1976. He reported that at the time, he experienced constant burning pain in the right inguinal area, and a physical limitation to lifting no more than 10 pounds. The diagnoses rendered were ventral hernia, as well as right inguinal hernia, status post repair. On examination, the examiner observed a 10 cm linear star in the right groin, without any evidence of either recurrence of the hernia, or herniation or incarceration of bowel. He documented that there was no indication for a supporting belt. He observed the Veteran’s scar, from the right inguinal hernia repair which was reported as barely visible, non-tender, and well-approximated. It was not unstable, nor have a total area greater than 39 sq.cms. The examiner noted May 2016 and October 2016 CT scans which confirmed the absence of any incarcerated bowel or defects in the mesh used to repair the right inguinal hernia. With respect to the Veteran’s complaints of burning, the examiner noted there were no signs of gangrene, obstruction, or any type of recurrence. He confirmed the functional impact of the Veteran’s condition was the lifting restriction to no more than 10 pounds, but would have no effect on sedentary employment. The Board acknowledges the February 2018 private opinion from Dr. J.H. who opined that the Veteran’s first hernia likely caused weakening of the muscles, resulting in the Veteran’s second and third hernias. The February 2017 examiner also opined that both the left inguinal hernia and umbilical hernia were “independent and separate conditions” that were not related either proximally or causally to the Veteran’s right inguinal hernia. He elaborated that they were related to the Veteran’s elevated BMI. However, to the extent that the Veteran’s umbilical or left inguinal hernia may be secondary to his service-connected inguinal hernia, such claim is not before the Board. The Board notes that the Veteran has described pain and burning, but the March 2013 and February 2017 VA examinations noted that the pain was not indicative of a recurrence of his previous hernia. The Board notes that the Veteran has been assigned a separate rating for his residual scar from the right inguinal hernia surgery, and has not appealed that decision. Symptoms associated with the scar cannot be considered in evaluating the right inguinal hernia residuals. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Based on a review of the entire evidence of record, the Board finds that a compensable rating for postoperative residuals of a right inguinal hernia is not warranted. However, 38 C.F.R. § 3.324 provides that whenever a veteran is suffering with two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. Here, the Veteran complains of pain and has functional limitations in the form of being unable to lift more than 10 pounds as a result of the right inguinal hernia. Accordingly, when considered with his separately rated scar, the Board finds that a 10 percent rating pursuant to 38 C.F.R. § 3.324 is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis