Citation Nr: 18158297 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-54 970 DATE: December 14, 2018 ORDER Entitlement to a compensable initial disability rating for left inguinal hernia, repaired, is denied. FINDING OF FACT 1. The Veteran suffered from a left inguinal hernia in service, and underwent surgical repair in service. 2. The Veteran’s inguinal hernia has been manifested by pain, and swelling, however, it has not been manifested by any new or recurring hernias. CONCLUSION OF LAW The criteria for a compensable initial disability rating for a left inguinal hernia, repaired is not met. 38 U.S.C. §§ 1101, 1110, 5107, 7105; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.31, 4.114, Diagnostic Code 7338. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty in the United States Army from January 1996 to January 2000. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an September 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). Higher Disability Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings applies, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower disability rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the veteran’s present level of disability is the question of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged disability ratings are appropriate in any increased disability rating claim where distinct time periods with different ratable symptoms can be identified in the evidence. The relevant focus for adjudicating an increased disability rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In instances where the disability rating being appealed is the initial disability rating that was assigned with a grant of service connection, the entire appeal period is for consideration, and again, staged ratings may be assigned as warranted, based upon the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a compensable initial disability rating for left inguinal hernia Service connection for residuals of a surgically repaired left inguinal hernia was granted to the Veteran, effective from January 2012. The Veteran was assigned a noncompensable disability rating under 38 C.F.R. § 4.114, Diagnostic Code 7346, for a hiatal hernia. The Veteran appealed the RO’s rating decision and asserts entitlement to a compensable initial disability rating. It is noted that the Veteran is in receipt of a 10 percent rating for a left inguinal scar; the matter of a higher rating for an inguinal scar is not before the Board. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case” and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). In this case, it is clear from the evidence of record that the disability at issue is an inguinal hernia, not a hiatal hernia. The Veteran’s service treatment records (STRs) confirm that the Veteran underwent surgery for an inguinal hernia, his post-service treatment records document complains of pains from the inguinal hernia, and his claims form indicate that the application was for benefits related to his inguinal hernia. Therefore, the Board will evaluate the Veteran’s claim for entitlement to a compensable initial disability rating pursuant to 38 C.F.R. § 4.114, DC 7338. Under DC 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 also assigned a noncompensable disability rating. A postoperative recurrent inguinal hernia, readily reducible, and well supported by truss or belt is assigned a 10 percent disability rating. A small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, warrants a 30 percent disability rating. A large inguinal hernia, postoperative recurrent, not well-supported under ordinary conditions and not readily reducible, when considered inoperable, is assigned a 60 percent disability rating. 38 C.F.R. § 4.114, DC 7338. The evidence shows that the Veteran had a left inguinal hernia which was surgically repaired in service in September 1997. During an August 2012 VA examination, the Veteran reported that he has not had a recurrence of the hernia since discharge from service, and that his current symptoms included sharp pulling pains and swelling. During the physical examination, no evidence of any new or recurring hernia was observed by the VA examiner. An examination of the Veteran’s skin revealed the presence of a surgical scar, but the examiner noted that the scar did not cause any loss of motion or other loss of function. See August 2012 VA Examination at 3-6. A November 2014 VA examination again revealed no evidence of a recurring or current hernia. The Veteran reported experiencing pain, and some swelling. The residual surgical scar over the Veteran’s left inguinal area was measured as being 9.5 centimeters by 0.01 centimeters, and described as painful. The examiner did note that the Veteran’s hernia condition impacts his ability to work as he is required to lift 100 pounds but is unable to. See November 2014 VA Examination at 9-14. Although the medical evidence shows that the Veteran’s left inguinal hernia was surgically repaired during service, it does not show that the Veteran has experienced any recurrence of that hernia or a new hernia at any time during the appeal period. Even though the more recent April 2016 VA examination revealed some functional impairment, the Veteran has not had a recurrence of the hernia. As noted above, a compensable (10 percent) disability rating requires postoperative recurrent inguinal hernia, readily reducible, and well supported by truss or belt, the Here, it is clear that the criteria for a compensable disability rating under DC 7338 has not been met. Accordingly, the Veteran’s claim for a compensable initial rating for an inguinal hernia must be denied. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B.Y. Nguyen, Law Clerk