Citation Nr: 18154303 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-56 053 DATE: November 30, 2018 ORDER Entitlement to an initial rating of 40 percent, but no higher, for back sprain is granted, subject to controlling regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for right inguinal hernia, status post-surgical repair with mesh placement is denied. Entitlement to an initial compensable rating for surgical scar, right inguinal hernia is denied. FINDINGS OF FACT 1. The Veteran’s service-connected back sprain symptoms have throughout the appeal period more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, but have not more nearly approximated unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes due to intervertebral disc syndrome (IVDS) of at least six weeks during the previous 12 months. 2. The Veteran’s right inguinal hernia, status post-surgical repair with mesh placement is not recurrent, readily reducible and well supported by a truss or belt. 3. The Veteran’s surgical scar, right inguinal hernia, does not involve the head, face, or neck; they are not deep; does not affect an area exceeding at least 6 square inches (39 square centimeters); is not painful or unstable; and does not have any other disabling effects. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, but no higher, for back sprain have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 (2017). 2. The criteria for an initial compensable rating for right inguinal hernia, status post-surgical repair with mesh placement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7338. 3. The criteria for an initial compensable rating for surgical scar, right inguinal hernia have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2008 to January 2013. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Veterans Claims Assistance Act of 2000 (VCAA) The Veteran has been provided VA medical examinations in connection with his claims of service connection for a back and inguinal hernia disabilities. In February 2017 written arguments, the Veteran’s attorney asserted that VA medical examinations obtained in connection with the Veteran’s claim for back disability and inguinal hernia were inadequate. The attorney’s argument appears to be that the back examination is inadequate because the examiner failed to address to what degrees or restrictions the Veteran would encounter in an occupational setting. In fact, however, the examination report indicates that the examiner concluded that the Veteran’s back disability impacted his ability to work, and identified his functional impairments, in terms of lifting weight, walking distance, and length of time sitting and standing. The Veteran’s attorney also argued the inadequacy of the VA examination on the basis that the examiner must address any functional loss due to flare-ups of the Veteran’s back disability. The examination report, however, reflects that the examiner addressed functional loss during flare-ups, as well as, provided an estimate of the degrees of additional loss of motion due to flare-ups. Those estimates, as well as the Board’s analysis, are the bases for the decision herein granting the highest rating based on limitation of motion of the lumbar spine. Any error in this regard is therefore harmless. The Veteran’s attorney further argued that the VA examination of the post-repair right inguinal hernia was inadequate due to the examiner’s failure to discuss functional loss or limitations associated with the Veteran’s reported pain when lifting or turning his body. However, while the regulations applicable to functional loss due to pain have a broad application, they do not apply to disabilities of the digestive system such as the Veteran’s hernia which is rated under 38 C.F.R. § 4.114, Diagnostic Code 7338. Southall-Norman v. McDonald 28 Vet. App. 346, 354 (2016) (38 C.F.R. § 4.59 applies to musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to “joint pain in general” and is not limited to joint pain due to arthritis) (emphasis added). Consequently, these regulations are not for application with regard to the claim for a higher initial rating for right inguinal hernia. As explained in the discussion below, the VA examination reports in this case are adequate because they were based on consideration of the Veteran’s prior medical history and examinations and also described the disabilities in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating 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. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 1. Back Sprain The Veteran’s service-connected back strain, has been assigned an initial 10 percent rating under Diagnostic Code 5237. VA’s Rating Schedule evaluates disabilities of the spine pursuant to a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. That formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the thoracolumbar spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. In that regard, the Board notes that the Veteran has been rated separately for sciatic and femoral radiculopathy of the right and left lower extremities. The Veteran has not appealed the ratings assigned for those disabilities. Under Note 5, unfavorable ankylosis is defined as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 20 percent rating is assigned. When intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran was afforded a VA medical examination in April 2015. He reported continuous pain, stiffness, and occasional “lock ups”. The Veteran’s lumbar forward flexion was to 85 degrees, with pain at 10 degrees. He performed repetitive use testing with no additional limitation in range of motion. The Veteran exhibited pain on movement. The examiner indicated that the Veteran’s back disability did not produce localized tenderness, pain on palpation, guarding, muscle spasm, or atrophy. The Veteran’s muscle strength was normal. Reflex examination was normal, and there was no evidence of neurological abnormalities. The examiner indicated that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran did not use assistive devices. The Veteran reported flare-ups of locking up and prostrating pain every three months, lasting 1 to 2 days. He indicated that he must rest until the symptoms clear. The examiner concluded that pain and fatigability could significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time. The examiner further concluded that additional limitation in range of motion due to flare-ups was at 0 to 5 degrees flexion. The examiner concluded that the Veteran’s back disability impacted his ability to work. The examiner noted that the Veteran could lift 75 to 100 pounds; walk up to 4 miles at one time; walk 8 to 9 miles in an eight-hour day; sit 10 minutes and stand 10 minutes at one time; and sit 4 hours and stand 3 hours during an eight-hour day. For the entirety of the period on appeal, a 40 percent rating is warranted. The Board must consider additional functional loss due to symptoms such as pain, repetitive motion, and flare-ups. 38 C.F.R. §§ 4.40, 4.45. In this case, at the April 2015 VA examination, range of motion testing showed the Veteran displayed flexion to 85 degrees, with pain at 10 degrees. The Veteran reported pain and flare-ups during the examination. Considering the pain at 10 degrees and flare-ups, the Board finds it reasonable to conclude that the Veteran’s symptomatology would nearly approximate flexion limited to 30 degrees during a flare-up or while experiencing pain. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (“Pain... may result in functional loss... if it limits the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.’” (quoting 38 C.F.R. § 4.40 (2011))). The examiner indicated pain and fatigability could significantly limit functional ability during flare-ups. Thus, the Board finds that the Veteran’s symptomatology more closely approximates that required for a 40 percent rating under the rating criteria. 38 C.F.R. § 4.7. Further, with regards to the VA examination, to the extent that any of the range of motion findings do not comport with the holding in Correia and the mandates of 38 C.F.R. § 4.59, the Board finds it is harmless error. Here, such findings could not result in increased ratings for the Veteran’s back disability as the Veteran is being awarded the maximum rating for limitation of motion for that disability for the entirety of the period on appeal. A rating higher than 40 percent requires ankylosis. There is no lay suggestion of any ankylosis, let alone any medical evidence of such. Therefore, a rating in excess of 40 percent is not warranted. Further, the Board notes that as 40 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion, and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). For the entire period on appeal, the Board notes that a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. Indeed, there is no evidence of any IVDS and such has even been ruled out at the Veteran’s VA examination. Further, there is no evidence that any IVDS resulted in incapacitating episodes requiring bedrest as ordered by a physician. As such, a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. In addition, as described above, Note 1 of the General Rating Formula instructs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. However, a review of the evidence of record does not reveal any competent evidence of any neurologic abnormalities associated with the service-connected back disability. Indeed, objective testing at the Veteran’s VA examination did not show any associated neurologic abnormalities. As such, Note 1 of the General Rating Formula is not for application. For the foregoing reasons, after affording the Veteran the benefit of the doubt, an initial 40 percent rating, but no higher, throughout the appeal period, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Inguinal Hernia The Veteran’s service-connected right inguinal hernia has been assigned an initial noncompensable rating under Diagnostic Code 7338. Pursuant to Diagnostic Code 7338, a small inguinal hernia, reducible, or without true hernia protrusion is rated noncompensable (0 percent) disabling. An inguinal hernia that is not operated, but is remediable, is rated noncompensable (0 percent) disabling. A postoperative recurrent inguinal hernia, readily reducible, and well supported by truss or belt is rated 10 percent disabling. A small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, is rated 30 percent disabling. A large inguinal hernia, postoperative 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, DC 7338. The Veteran underwent a VA medical examination in April 2015, at which time the examiner confirmed the diagnosis of inguinal hernia removal with mesh placement with residual scar in 2009. It was noted that the hernia itself had not recurred, but the Veteran reported continuing symptoms of pain and pressure sensation with sexual activity, intermittent warm sensation returns. No current diagnostics were available. The examiner noted that the Veteran’s complaints of residual pain was commonly related with mesh placement. Upon evaluation, the examiner noted no true hernia protrusion of the right and left side. The examiner concluded that the Veteran’s hernia disability impacted his ability to work, as it precludes his lifting or turning without pain. For the following reasons, a compensable rating for the Veteran’s service-connected right inguinal hernia is not warranted for any portion of the rating period on appeal. The evidence of record demonstrates complaints of pain and pressure sensation with sexual activity, with intermittent warm sensation returning. Notably, the examiner noted that the hernia itself and not recurred, and there was no true hernia protrusion upon evaluation. As such, the evidence fails to establish a post-operative recurrent inguinal hernia, readily reducible and well supported by a truss or belt to meet the criteria for a 10 percent rating. Thus, a compensable rating is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 3. Surgical Scar, Right Inguinal Hernia The Veteran’s service-connected surgical scar, right inguinal hernia has been assigned an initial noncompensable rating under Diagnostic Code 7805. Diagnostic Code 7805 instructs to evaluate scars under Diagnostic Codes 7800, 7801, 7802, and 7804. Diagnostic Code 7800 relates to scars of the head, face, or neck; Diagnostic Code 7801 relates to scars not of the head, face, or neck that are deep and nonlinear; and Diagnostic Code 7802 relates to scars that are superficial and nonlinear. Diagnostic Code 7804 provides a 10 percent evaluation for one or two scars that are unstable and painful on examination. A 20 percent evaluation applies to three or four scars that are unstable or painful. A 30 percent evaluation is 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, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code when applicable. 38 C.F.R. § 4.118 For the following reasons, the Board finds that entitlement to an initial compensable rating for surgical scar, right inguinal hernia is not warranted. At the April 2015 VA examination, the examiner indicated that the Veteran exhibited one 7 cm x 0.25 cm, linear scar, oblique at right inguinal area. The inguinal hernia scar was not a burn scar located on the Veteran’s head, face, or neck to warrant consideration under Diagnostic Code 7800. The scar area was not at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), thus a rating under Diagnostic Code 7801 is not warranted. The scar area was not 144 square inches (929 sq. cm.) or greater, thus a rating under Diagnostic Code 7802 is not warranted. The scar was also not painful or unstable, warranting a compensable rating under DC 7804. Further, the Veteran’s inguinal hernia scar was not shown to have any disabling effects. Therefore, a compensable rating for surgical scar, right inguinal hernia is not warranted and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § The Board has considered the Veteran’s initial rating claims and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. 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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel