Citation Nr: 20008263 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 14-20 722 DATE: January 31, 2020 ORDER Entitlement to an initial compensable rating, prior to September 24, 2012, for service-connected residual surgical scar, status post right inguinal hernia repair, is denied. Entitlement to a 20 percent rating, but no higher, effective September 24, 2012, for service-connected residual surgical scar, status post right inguinal hernia repair, is granted. REMANDED Entitlement to service connection for left inguinal pain is remanded. Entitlement to an initial compensable rating prior to April 14, 2018, and in excess of 10 percent thereafter (but excluding from August 7, 2018 to September 30, 2018), for service-connected inguinal hernia repair right side, is remanded. FINDINGS OF FACT 1. The most probative evidence of record establishes that the Veteran had a scar that was neither unstable nor painful prior to September 24, 2012. 2. The most probative evidence of record establishes that the Veteran has had three painful scars, since September 24, 2012. However, there is no evidence of instability. CONCLUSIONS OF LAW 1. Prior to September 24, 2012, the criteria for an initial compensable rating for service-connected residual surgical scar, status post right inguinal hernia repair, under DC 7804, were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.27, 4.118, Diagnostic Code 7804 (2018). 2. Since September 24, 2012, the criteria for a rating of 20 percent, but no higher, for the Veteran’s service-connected surgical scar, status post right inguinal hernia repair, under DC 7804, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.27, 4.118, Diagnostic Code 7804 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 through July 1983. The Veteran testified before the undersigned Veterans Law Judge during a May 2018 Board hearing. A transcript of that hearing has been associated with the claims file. During the pendency of the appeal, the Veteran was granted a temporary 100 percent rating based on convalescence, for service-connected inguinal hernia repair right side, from August 7, 2018 to September 30, 2018. See May 2019 rating decision. Because the Veteran is in receipt of the highest available rating (100 percent) from August 7, 2018 to September 30, 2018, he cannot receive any higher rating for this period, and for this reason, the Board will focus solely on the remaining time periods (for service-connected inguinal hernia repair right side). Additional records have been associated since the April 2019 Supplemental Statement of the Case (SSOC). In August 2019 the Board advised the Veteran of this fact, and he submitted a written waiver of the AOJ’s initial consideration in September 2019. Thus, the Board may proceed to adjudicate at this time. Most recently, in July 2018, the Board remanded the Veteran’s claims for higher initial disability ratings for service-connected inguinal hernia repair right side and service-connected residual surgical scar, status post right inguinal hernia repair, and his claim for service connection for a left inguinal hernia was denied. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a joint motion for partial remand (JMPR) granted by the CAVC in April 2019, the July 2018 Board decision was vacated and remanded for a VA examination for the left inguinal hernia claim. The two increased disability rating claims, which were undisturbed by the JMPR, were remanded in the July 2018 Board decision for a VA examination, in order to ascertain the nature and the number of the Veteran’s service-connected surgical scars, as well as the current severity of the service-connected inguinal right hernia repair right side. The Board finds that there has been substantial compliance with the remand directives, as the RO completed the requested development (ie. obtained a VA examination that addressees all of those requests). Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Unfortunately, as will be addressed in detail in the remand section below, the Board finds that another remand for a VA examination is required for the claim for a higher disability rating for service-connected inguinal hernia repair right side. In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable rating prior to September 24, 2012 for service-connected residual surgical scar, status post right inguinal hernia repair associated with inguinal hernia repair right side, is denied. The Veteran is currently in receipt of a noncompensable initial rating prior to September 24, 2012, and of a 10 percent rating, thereafter, for service-connected residual surgical scar, status post right inguinal hernia repair associated with inguinal hernia repair right side, under Diagnostic Code (DC) 7804. Pertinent regulations for consideration were provided to the Veteran in the April 2019 Supplemental Statement of the Case (SSOC) and will not be repeated here in full. The Veteran seeks a compensable rating and contends that he had a painful scar throughout this period. See Form 9, June 2019 correspondence. After reviewing all records, the Board concludes that he is not warranted a compensable rating for his surgical scar condition, prior to September 24, 2012. The medical evidence from this period showed the Veteran had a scar that was neither painful and/or unstable, nor with a total area greater than 39 square centimeters. See February 2012 VA examination. The Board is cognizant of the Veteran’s contention that he had the same one painful scar all throughout this period resulting from his right inguinal hernia surgery (see May 2014 Form 9, June 2019 correspondence)—which he is competent to report (ie. symptoms, such as pain). While the Board finds his statements credible, given the consistency in his statements, the Board gives more probative value to the February 2012 VA examination. Notably, despite the fact that the Veteran underwent an in-person examination in February 2012, and although the examiner also reviewed all pertinent records during that time, to include his treatment records, the examiner did not find any indication of a painful scar. There are no treatment records that provide otherwise. Thus, the claim is denied. In summary, the Board finds that the Veteran’s condition did not warrant a compensable rating any time during this period. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine but finds it inapplicable for the preponderance of the evidence is against the Veteran’s claim. Thus, the Veteran’s claim is denied. See 38 U.S.C. § 5107(b). 2. Entitlement to a 20 percent rating, but no higher, for service-connected residual surgical scar, status post right inguinal hernia repair, effective September 24, under DC 7804, 2012, is granted. The Veteran is in receipt of a 10 percent rating, for service-connected residual surgical scar, status post right inguinal hernia repair, under DC 7804, since September 24, 2012. Pursuant to the most recent Board remand (in July 2018), the Veteran was afforded a new VA examination in March 2019, which was ordered to reconcile the seemingly conflicting findings in the September 2012 VA examination, concerning the quantity and the nature of the Veteran’s scars (see September 2012 VA examination; indicating that the Veteran had four painful scars that were not unstable, but also describing his scar as one linear scar that was 3.9cm times 0.3 cm in its dimension). The March 2019 VA examiner clarified that the Veteran has three painful scars (“tenderness and pain at incision sites and all three scars are tender on palpation”) on his abdomen (mid lower abdomen, right and left lower abdomen), each having a dimension of 1 centimeter by 2.54 centimeter (approximating a total area of 7.62 cm square), as well as some functional limitations as due to these scars (ie. cannot lift anything heavy/bend). However, there was no indication of his scars being unstable, and the Veteran has not disputed otherwise. The Veteran only reported pain and some functional impairments (ie. difficulty bending/lifting heavy objects as due to pain, as well as an increased pain when driving/sitting for an extended period of time). There was also no indication of burn scars. After reviewing all records, the Board finds that the criteria for a 20 percent rating, but no higher, has been approximated since September 24, 2012. Notably, there are objective and subjective findings of three painful scars on his abdomen. However, a higher rating is not warranted since there is no evidence of five or more scars that are unstable or painful. Although the Veteran reported that he has three scars from the August 2018 surgery, and a scar from the former right inguinal hernia surgery (see June 2019 correspondence)—essentially, a total of four scars—the Board notes that the Veteran was found to have only three scars during the most recent VA examination, and even if he has four painful scars, as opposed to three, the overall evaluation will not change, as a next higher rating of a 30 percent applies only if he has “five or more scars” that are unstable or painful. In addition, while painful and unstable scars allow an additional 10 percent, neither the Veteran nor the medical record suggest that any of the scars were unstable. Thus, the Board finds that the Veteran warrants a 20 percent, but no higher, for his service-connected residual surgical scars, under DC 7804, effective September 24, 2012. REASONS FOR REMAND 3. Entitlement to service connection for left inguinal hernia is remanded. As noted above, a joint motion for partial remand (JMPR) was granted by the CAVC in April 2019, and the July 2018 Board decision was vacated and remanded for a new VA examination concerning this claim. The parties agreed, pursuant to the JMPR, that the February 2012 VA examination/medical opinion, which the Board partly relied on in denying the claim, was inadequate, as lacking a sufficient rationale. Thus, the Board is obligated to remand and obtain a new medical examination that adequately addresses whether the Veteran’s current left inguinal hernia is related to his active service, to include as secondary to the service-connected right inguinal hernia. 4. Entitlement to an initial compensable rating prior to April 14, 2018, and in excess of 10 percent thereafter (but excluding from August 7, 2018 to September 30, 2018) for service-connected inguinal hernia repair right side is remanded. Since the most recent VA examination in March 2019, the Veteran has submitted a written statement, reporting recurrent pain and problems with mesh. See June 2019 correspondence. His July 2019 VA treatment records also document his report of pain (ie. the “patient states that his hernia is still hurting and is wanting to see PCP”). See July 2019 VA treatment records. Although the Veteran has undergone a VA examination fairly recently in March 2019 (during which time, the examiner stated “no hernia [was] detected” on examination), a remand is required to ascertain the current severity/nature of his inguinal hernia condition (ie. postoperative recurrent, small, large). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from July 2019 to the present. 2. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected inguinal hernia repair right side. 3. Schedule a VA examination and medical opinion. The examiner must review the complete claims file, including this remand. Then, the examiner must address the following, with full supporting rationales: (a.) Determine whether the Veteran’s left inguinal pain is at least as likely as not related to an in-service injury, event, or disease. (b.) Determine whether the Veteran’s left inguinal pain is proximately due to or is aggravated by service-connected inguinal hernia repair right side. In doing so, the examiner should consider all pertinent records, to include the June 2018 VA general surgery consult note (ie. diagnosing “moderate sized bilateral inguinal hernias”), April 2018 letter from James A. Haley Veterans Hospital, and a December 2017 VA New Patient Care Note. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.