Citation Nr: 21002253 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-12 783 DATE: January 13, 2021 ORDER A compensable rating for left inguinal hernia status post-surgical repair is denied. An initial rating of 10 percent, but no higher, for scar status post left inguinal hernia repair (left inguinal scar) prior to March 20, 2020, is granted. REMANDED Entitlement to a rating in excess of 10 percent from March 20, 2020 for left inguinal scar is remanded. FINDINGS OF FACT 1. The Veteran’s right inguinal hernia disability is not more nearly manifested by postoperative recurrence of right inguinal hernia that is readily reducible and well supported by truss or belt. 2. Prior to March 20, 2020, the Veteran’s left inguinal scar was manifested by pain, but was not unstable. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left inguinal hernia status post-surgical repair are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7338. 2. Prior to March 20, 2020, the criteria for an initial rating of 10 percent, but no higher, for the Veteran’s left inguinal scar were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to November 1975. This matter comes before the Board of Veteran’s Appeals (Board) on appeal of a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. In January 2020, the Board remanded the appeal. As to those matters adjudicated here, the Board finds that there has been substantial compliance with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999). During the pendency of the appeal, a September 2020 rating decision granted a 10 percent rating for left inguinal scar under Diagnostic Code 7804, effective from March 20, 2020. However, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim remains in appeal status. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. A compensable rating for left inguinal hernia status post-surgical repair. The Veteran seeks a compensable rating for left inguinal hernia status post-surgical repair. He stated that he experiences discomfort and pain all the time, including when lifting anything heavy, and cannot do a lot of things on the left side. See Hearing Transcript (January 2020). The Board concludes that the preponderance of the evidence is against compensable evaluation for left inguinal hernia status post-surgical repair. Postoperative recurrence of left inguinal hernia which is readily reducible and well supported by truss or belt is not more nearly manifested. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Codes (DC) 7338. Under DC 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. At the February 2015 VA examination, the Veteran was noted have a history of left inguinal hernia, but no hernia at the time of examination. See C&P Exam (February 2015). The Veteran did not wear a supporting belt at that time, and there was no functional impact noted. Id. VA treatment records from February 2015 to January 2020 do not show treatment for or complaints associated with left inguinal hernia status post-surgical repair. See CAPRI (December 2017 and February 2020). In May 2016, the Veteran submitted a private treatment note indicating that he wore a truss for his inguinal hernia. See Medical Treatment Record - Non-Government Facility (May 2016). In March 2020, the Veteran underwent another VA examination, where he reported pain in the left inguinal area when lifting objects or pressing on the area. See C&P Exam (March 2020). No return of the hernia was noted since the 1975 operation. Id. He was noted to wear a truss for support without hernia actually present. Id. Functional impact was described as not lifting more than 50 pounds or straining such as pulling or pushing. Id. Lay statements from the Veteran indicate pain, pain on lifting heavy objects and continued wearing of a truss since about 2016, but do not indicate recurrence of a left inguinal hernia. Available post-service medical records, similarly, do not show competent evidence of any recurrence of inguinal hernia. It is noted that, at the January 2020 Board hearing, the Veteran indicated that he received treatment for his inguinal hernia from a private provider. The Board subsequently remanded the claim to obtain these potentially relevant identified outstanding private treatment records. A review of the record reveals that in February 2020, VA sent the Veteran and his representative VA Form 21-4142 and VA Form 21-4142a so VA could obtain the treatment records. To date, neither the Veteran nor the representative has returned an authorization to obtain this relevant evidence. VA has a duty to assist the Veteran in substantiating his claim, the duty is not a one-way street and claimants are expected to cooperate in the development of their claims. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, as the record reflects attempts to obtain these treatment records, the Board finds that VA has met its duty to assist. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. The record lacks lay evidence in support of a higher rating in this case. Although the Veteran may believe he meets the criteria for a higher disability rating, the Board finds that his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation, as explained above. The Board has considered whether a higher or separate evaluation may be assigned under any other potentially applicable criteria. However, there is no other basis to award a separate or higher evaluation. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than now assigned, as explained and discussed above. The Board finds that there is no basis to “stage” the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a compensable initial rating for left inguinal scar prior to March 20, 2020. The Veteran, and his representative, contends that his left inguinal scar warrants a compensable rating. Specifically, the Veteran testified that he should be entitled to a compensable rating because of the pain, tenderness and discoloration associated with the scar. See Hearing Transcript (January 2020). The Board finds that the evidence supports a 10 percent rating, but no higher, for the Veteran’s left inguinal scar prior to March 20, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7804. The Veteran’s service-connected left inguinal scar is rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7805. Effective August 13, 2018, VA amended the criteria for rating skin disabilities. See 83 Federal Register 32592 (July 13, 2018). VA published in the Federal Register the proposed rule for the Schedule for Rating Disabilities: Skin on August 12, 2018. The final rule implements the Secretary’s proposed rule with limited revisions. The summary in the Federal Register notes that these new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018, and claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria are more favorable to the veteran will be applied. In this case, both the rating criteria prior to and after the August 13, 2018, amendments would be for consideration. However, as discussed below, the specific amendments to the rating criteria for skin disabilities are not applicable to the instant case. As noted above, the Veteran is currently assigned a noncompensable evaluation under Diagnostic Code 7805. Under Diagnostic Code 7805, scars, other; and other effects of scars are to be evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. The Veteran’s scar is not located on his head, face, or neck; therefore, Diagnostic Code 7800 is not applicable. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. Prior to the August 2018 amendments, Diagnostic Code 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under Diagnostic Code 7801, a 10 percent rating is warranted for area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted for area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating is warranted for area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is warranted for area or areas of 144 square inches (929 square centimeters) or greater. Note (1) provides that for the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Diagnostic Code 7802 provides a 10 percent evaluation for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage and involve an area or areas of 144 square inches (929 square centimeters) or greater. Prior to the August 2018 amendments, Diagnostic Code 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. Notes (1) and (2) found under Diagnostic Code 7801 are also applicable to Diagnostic Code 7802. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, and a maximum 30 percent rating is warranted for five or more scars that are unstable or painful. There are three general notes associated with 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states 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) indicates that scars evaluated under diagnostic codes 7800, 7801, 7802, and 7805 may also receive an evaluation under this diagnostic code, when applicable. Turning to the evidence, VA examination report, dated in February 2015, reflects that the Veteran’s left inguinal scar is less than 39 square centimeters (six square inches), not painful, and not unstable. In his Notice of Disagreement dated March 2016, the Veteran reported that his scar was constantly painful and bothered him. See NOD (March 2016). In his appeal to the Board in February 2018, the Veteran also expressed that his left inguinal scar was painful and was affecting his quality of life. See Form 9 (February 2018). At the January 2020 Board hearing, the Veteran reported pain, tenderness and discolored. In this case, the Veteran is competent to report the symptoms he experienced, including pain, as he did throughout the appeal period. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, because the Veteran’s scar is painful, the Board finds an evaluation of 10 percent is warranted under Diagnostic Code 7804. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 10 percent at any point during the appeal period for his left inguinal scar. However, the evidence does not demonstrate that his scar is unstable or that he has any additional painful or unstable scars associated with his left inguinal hernia status post-surgical repair. As such, a higher rating is not warranted under Diagnostic Code 7804. In addition, the Veteran does not have a scar that is deep and nonlinear or that is associated with underlying soft tissue damage, measuring at least 12 square inches but less than 72 square inches. As such, a higher evaluation is not warranted under Diagnostic Code 7801. Moreover, the maximum evaluation under Diagnostic Code 7802 is 10 percent. Thus, a higher evaluation cannot be granted under that Diagnostic Code. Additionally, there is no evidence of any other disabling effects as contemplated under Diagnostic Code 7805. As such, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 7805. Based on the foregoing, the Board finds that a separate 10 percent rating is warranted for the Veteran’s left inguinal scar throughout the pendency of the appeal prior to March 20, 2020. The weight of the evidence, however, is against the finding that a rating in excess of 10 percent is warranted at any time during the appeal period prior to March 20, 2020. REASONS FOR REMAND 3. Entitlement to a rating in excess of 10 percent from March 20, 2020 for left inguinal scar is remanded. To ensure due process of law, the appeal is remanded for issuance of a Supplemental Statement of the Case. 38 C.F.R. § 19.31(c). Following a January 2020 Board remand of an initial compensable rating for left inguinal scar under DC 7805, a September 2020 rating decision granted a 10 percent rating for the Veteran’s scar under DC 7804. A September 2020 Supplemental Statement of the Case addressed the noncompensable rating under DC 7805 prior to March 20, 2020. However, as a grant of 10 percent for scar under DC 7804 does not represent the highest possible benefit, this issue remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The Board’s prior remand decision directed the Agency of Original Jurisdiction (AOJ) to readjudicate the matter, which has not been accomplished as to the grant of a 10 percent rating for scar from March 20, 2020. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the appeal is REMANDED for the following action: Send the Veteran and his representative a Supplemental Statement of the Case on the issue of entitlement to a rating in excess of 10 percent for inguinal hernia scar from March 20, 2020. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.