Citation Nr: 21065726 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-50 298 DATE: October 27, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for a postoperative right inguinal hernia, prior to January 6, 2020, is denied. Entitlement to restoration of a 10 percent evaluation for a postoperative, right inguinal hernia, since January 6, 2020, to include consideration of a yet higher rating, is denied. Entitlement to a rating in excess of 10 percent for traumatic degenerative joint disease, right foot and ankle, is denied. FINDINGS OF FACT 1. Prior to January 6, 2020, the Veteran's post operative, right inguinal hernia was manifested by no worse than a small postoperative recurrent hernia, readily reducible or well supported by truss or belt. 2. The evidence of record since January 6, 2020, reflects actual improvement of the Veteran's right inguinal hernia; there is no current hernia, and no current associated symptomatology. 3. Throughout the appellate period, the Veteran's traumatic degenerative joint disease, right foot and ankle, has manifested as no worse than plantar flexion of the ankle to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for right inguinal hernias prior to January 6, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7338. 2. The reduction for the rating for right inguinal hernias, from 10 percent to 0 percent, effective January 6, 2020, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.344, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7338. 3. The criteria for entitlement to an initial rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1- 4.7, 4.21, 4.40, 4.44, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1977 to October 1981. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The June 2015 rating decision assigned an increased rating of 10 percent for the Veteran's right inguinal hernia, effective February 10, 2015 and continued the 10 percent evaluation previously assigned for the Veteran's right ankle disability. The Veteran perfected an appeal of this rating decision in September 2017, seeking increased evaluations for each disability. While the appeal was pending before the Board, the AOJ issued a new rating decision in January 2020 which decreased the evaluation of the Veteran's right inguinal hernia to 0 percent, effective January 6, 2020 and continued the 10 percent evaluation previously assigned for the Veteran's right ankle disability. The January 2020 rating decision was issued after the AOJ obtained VA examinations in February and March 2020 and more recent VA medical records. While the AOJ did not issue a new supplemental statement of the case (SSOC), it did consider the new evidence in the increased rating claims for right inguinal hernia and for the right ankle disability. Because the AOJ has already considered this newly associated evidence and adjudicated the matters, a remand for issuance of an SSOC would needlessly delay the Veteran's claim and waste governmental resources. No new evidence related to the Veteran's hernia disability or ankle disability was submitted after the January 2020 rating decision. With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Right Inguinal Hernia The Veteran's right inguinal hernia condition is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7338, hernia, inguinal. A noncompensable rating is assigned if the hernia is not operated on, but remediable or when the hernia is small, reducible, or without true hernia protrusion. A 10 percent rating is assigned for a hernia that is postoperative recurrent, readily reducible, and well supported by truss or belt. A 30 percent rating is assigned when the hernia is small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. A 60 percent evaluation is warranted for large, postoperative, recurrent hernia; not well supported under ordinary conditions and not readily reducible, when considered inoperable. Prior to January 6, 2020 The Veteran is seeking an evaluation in excess of 10 percent prior to January 6, 2020, for his right inguinal hernia. In May 2015, the Veteran was afforded a VA hernia examination. Veteran reported that he was waiting for a hernia surgery to be scheduled. Examiner reported finding a small inguinal hernia on the right side that appeared operable and remediable. The examiner noted indication for a supporting belt, but that Veteran had not tried or used one. Subsequent VA treatment records indicate that Veteran had a successful right hernia repair surgery in 2015. In 2017, 2019, and 2020, the Veteran's medical records note that physical examinations found no hernias. Veteran did occasionally complain of pain, and right and left hernias appeared on CT scans in April 2021. Evidence indicates the Veteran's right hernia was recurrent, readily reducible, and treatable with surgery. There was no evidence that the hernia was unoperated, irremediable, not well supported by truss, or not readily reducible. Therefore, an increase rating in excess of the 10 percent previously assigned is not warranted as the criteria for a rating of 30 percent has not been met. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b). Since January 6, 2020 The Veteran contends that the 10 percent evaluation assigned for his right inguinal hernia should not have been reduced to 0 percent, and is worse than the previously assigned 10 percent evaluation. In a June 2015 rating decision, the AOJ granted a 10 percent evaluation from January 16, 2015. A January 2020 rating decision reduced the Veteran's ratings from 10 percent to 0 percent for right inguinal hernia effective January 6, 2020. The regulations allow for a reduction of a service-connected disability rating when warranted by the evidence but only after following certain procedural requirements and substantive guidelines. After review of the claims file the Board finds that the reductions are appropriate. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, special due process protections under 38 C.F.R. § 3.105(e) are triggered. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007); Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010). The January 2020 rating decision that implemented the rating reduction did not change the Veteran's overall disability rating; it remained at 100 percent. The compensation payable was never reduced, and so no additional due process was required. Therefore, the remaining question is the propriety of the reduction which may be based on factual finding. The 10 percent rating for right inguinal hernia was in effect from January 16, 2015, to January 6, 2020. Because the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b), which provide additional regulatory hurdles to rating reductions, do not apply. See, e.g., Simon v. Wilkie, 30 Vet. App. 403(2018); Hanser v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 269. The provisions of 38 C.F.R. § 3.344(c) provide that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. A reexamination disclosing improvement will warrant a reduction in rating. 38 C.F.R. § 3.344(c). In Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements applicable to all rating reductions, including those which have been in effect for less than five years. Id. at 417. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Id at 420. Similarly, 38 C.F.R. § 4.2, establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of the veteran's disability. Id. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 42021; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. The Board finds that a preponderance of the evidence supports a finding of material improvement in the Veteran's right inguinal hernia. As discussed above, the Veteran's right inguinal hernia condition is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7338. On January 6, 2020, the Veteran was afforded a VA hernia examination. The examiner found no current hernia visible in the right or left inguinal area. The Veteran reported that he had a second right hernia repair in 2015 and did not currently have a hernia. The Veteran reported intermittent pain when lifting. The examiner noted that no inguinal hernia was detected on the right, demonstrating a material improvement in the Veteran's hernia condition. The Veteran is able to move and function without restriction of movement from any residuals of a right inguinal hernia. From 2017 to 2020, VA treatment records indicate that the Veteran did not have a visible right inguinal hernia. Treatment records indicate that Veteran subsequently developed a left inguinal hernia and was scheduled for surgery in 2021. The left inguinal hernia is not at issue before the Board. The medical evidence of record, including the Veteran's statements at his January 2020 VA examination, establishes that the Veteran does not have a current right inguinal hernia and has not for several years, which is a material improvement in his disability. After careful consideration of the evidence, especially the May 2015 and January 2020 hernia examinations, the Board finds that the reduction of the evaluation assigned for the right inguinal hernia was proper. The January 2020 VA examinations disclosed the Veteran's condition was asymptomatic. Thus, the regulations mandate a reduction as such improvement will warrant reduction in rating. See 38 C.F.R. § 3.344(c). Because the right inguinal hernia condition was stabilized and was likely to improve as the rating was not in effect for 5 or more years, the stricter reduction provisions of 38 C.F.R. § 3.344(a) are not applicable. As the preponderance of the evidence shows that the reduction was proper, due to an absence of symptoms of the service-connected right inguinal hernia, restoration of the 10 percent rating is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b). Right Foot and Ankle The Veteran is seeking an increased evaluation in excess of 10 percent for his right foot and ankle disability. The Veteran's right foot and ankle disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, ankle, limited motion of. Moderate limitation of motion of the ankle is assigned a 10 percent evaluation. Marked limitation of motion of the ankle is assigned a 20 percent evaluation. The words "moderate" and "marked" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. Alternatively, arthritis may assigned a 10 percent rating under Code 5003 (degenerative arthritis) or Code 5010 (traumatic arthritis). Painful motion not compensable under a joint-specific Code like 5271 is rated 10 percent disabling when there is also radiographic evidence of degeneration. 38 C.F.R. § 4.71a, Code 4.71a. The Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021 and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries,85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). The amended regulations define the words "moderate" and "marked" in the revised rating schedule. Moderate limitation of motion of the ankle is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion; moderate limitation is assigned a 10 percent evaluation. Marked limitation of motion of the ankle is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; marked limitation is assigned a 20 percent evaluation. 38 C.F.R. § 4.71a. For Codes 5003 and 5010, the substantive provisions did not change with the amendments. VA regulations define normal range of motion of the ankle as flexion from 0 to 45 degrees and dorsiflexion from 0 to 20 degrees. 38 C.F.R. § 4.71a, Plate II. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA medical records and private treatment records document that the Veteran has had chronic ankle pain since the 1980s. In 2009, x-rays of Veteran's right ankle noted mild degenerative changes and Veteran underwent physical therapy. In 2014, treatment records note that Veteran takes Tylenol and tramadol for his ankle pain. The Veteran was afforded a VA examination in May 2015. Range of motion testing reflected dorsiflexion to 20 degrees and plantar flexion to 25 degrees. The exam revealed no reduction of muscle strength in the plantar flexion or in the dorsiflexion. The examiner noted pain on exam, but that the pain did not result in functional loss. The Veteran did not have ankylosis. In January 2018, limited range of dorsiflexion was noted by Veteran's podiatrist. In January 2020, Veteran's right ankle x-ray indicated degenerative arthritis. On January 6, 2020, the Veteran was afforded a second VA examination of the ankle. Veteran reported that at times his ankle does not feel stable when he is walking and that he experiences ankle pain when walking. The Veteran reported that he occasionally used a cane and orthotics. Range of motion testing reflected dorsiflexion to 20 degrees and plantar flexion to 30 degrees. The examiner noted that Veteran's abnormal range of motion caused functional loss manifested as decreased ability to run and jump. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner opined that pain would have a mild impact on Veteran's right ankle range of motion after repeated use. The Veteran was not examined during a flare-up, and the examiner opined that a flare-up would have a mild impact on Veteran's right ankle range of motion. The exam revealed no reduction of muscle strength in the plantar flexion or in the dorsiflexion. The Veteran did not have ankylosis. (Continued on the next page) The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran's ankle disability does not more nearly approximate the rating criteria of a higher disability level. Motion was, at worst, limited to plantar flexion to 30 degrees, barely warranting the currently assigned 10 percent rating, even upon consideration of the functional impact of pain with use and on flare-ups. The painful motion and radiographic evidence of arthritis also justify no greater than a 10 percent rating, either under Code 5003 or by application of 38 C.F.R. § 4.59. The evidence shows that the Veteran does not have ankylosis. The Board finds that the overall disability picture from June 2015 is not severe enough to warrant assignment of an evaluation in excess of 10 percent. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.