Citation Nr: 21066948 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-45 101 DATE: November 3, 2021 ORDER Entitlement to a temporary rating of 100 percent from September 18, 2019 to November 30, 2019 due to convalescence for the service-connected bilateral inguinal hernias treatment is granted. Entitlement to an initial compensable rating prior to May 1, 2019 and in excess of 10 percent thereafter for bilateral inguinal hernias, except for two convalescent periods from October 10, 2018 to December 31, 2018 and September 18, 2019 to November 30, 2019, is denied. FINDINGS OF FACT 1. The Veteran required a convalescence from September 18, 2019 to November 30, 2019 after the service-connected bilateral inguinal hernias repair. 2. The Veteran's service-connected hernias are manifested by reported pain; however, medical evidence shows no hernia was detected prior to May 1, 2019, and thereafter, no small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible hernia was present. CONCLUSIONS OF LAW 1. The criteria for entitlement to a temporary rating of 100 percent from September 18, 2019 to November 30, 2019 due to convalescence for the service-connected bilateral inguinal hernias treatment have been met. 2. The criteria for entitlement to an initial compensable rating prior to May 1, 2019 and in excess of 10 percent thereafter for bilateral inguinal hernias, except for two convalescent periods from October 10, 2018 to December 31, 2018 and September 18, 2019 to November 30, 2019, have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1987 to August 1991, October 1993 to October 1996, October 2005 to November 2005, and July 2010 to August 2011. He also had additional service in the Reserves and National Guard. This appeal came before the Board of Veterans' Appeals ("Board") consisting of merged appeal streams, arising from June 2015 and December 2017 rating decisions of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Veteran testified at a January 2021 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded the issue of "entitlement to an initial compensable rating for bilateral inguinal hernias" along with issue of "entitlement to service connection for a back condition" recently in July 2021. After completing the additional development, the RO granted entitlement to service connection for a back condition in the September 2021 rating decision. The RO also issued a supplemental statement of the case in September 2021, denying entitlement to an initial compensable rating for bilateral inguinal hernias, and returned the matter to the Board for appellate adjudication. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of a disability is resolved in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's entire history is to be considered when assigning disability rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the period of claim on appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson, 12 Vet. App. at 126. Initially the Board notes that the rating period for the service-connected bilateral inguinal hernias begins from January 23, 2014, date of receipt of the original claim of entitlement to service connection for bilateral inguinal hernias. 1. Entitlement to a temporary rating of 100 percent from September 18, 2019 to November 30, 2019 due to convalescence for the service-connected bilateral inguinal hernias treatment. Although the Veteran does not raise the issue of entitlement to a temporary total rating, this issue is raised by the record and is part and parcel of the increased rating claim on appeal. Under 38 C.F.R. § 4.29, a total disability rating will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. Under 38 C.F.R. § 4.30, a total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. Such total rating will be followed by appropriate schedular evaluations. Specifically, a temporary total rating will be assigned when treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence (effective as to outpatient surgery March 1, 1989); (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a)(1)-(3). "Convalescence" is defined as the stage of recovery following an attack of disease, a surgical operation, or an injury. Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary, 374 (28th ed. 1994)). "Recovery" is defined as the act of regaining or returning toward a normal or healthy state. Id. (citing Webster's Medical Desk Dictionary, p. 606 (1986)). In the July 2021 remand, the Board noted that the Veteran underwent a hernia repair in September 2019, therefore, instructed the RO to consider temporary rating for convalescent period. However, the Board notes that no adjudication has been done on this issue by the RO. The VA treatment record clearly depicts that the Veteran underwent a left inguinal hernia repair at Boston VA Medical Center on September 18, 2019. The operating surgeon noted that a segment of the Veteran's intestine was bulging through the abdominal wall and placed back into the abdominal cavity. Per the November 5, 2019 notation in VA treatment record, the Veteran was advised to return to work in two weeks. This indicates that the Veteran had a recovery period from September 18, 2019 until near the end of November 2019. Hence, the Board finds that a temporary 100 percent rating from September 18, 2019 to November 30, 2019 due to convalescence after the service-connected bilateral inguinal hernias repair is warranted. 2. Entitlement to an initial compensable rating prior to May 1, 2019 and in excess of 10 percent thereafter for bilateral inguinal hernias, except for two convalescent periods from October 10, 2018 to December 31, 2018 and September 18, 2019 to November 30, 2019. The Veteran's service-connected bilateral inguinal hernias are rated under 38 C.F.R. § 4.114, Diagnostic Code 7338. Pursuant to diagnostic code 7338, a noncompensable rating is warranted when the inguinal hernia has not been operated on but is remediable; or, small, reducible, or without true hernia protrusion. 38 C.F.R. § 4.114, Diagnostic Code 7338. A 10 percent rating is warranted when the inguinal hernia is postoperative recurrent, readily reducible, and well-supported by truss or belt. Id. A 30 percent rating is warranted when the inguinal hernia is a small, postoperative recurrent, or unoperated irremediable, not well-supported by truss, or not readily reducible. Id. A 60 percent rating is warranted when the inguinal hernia is a large postoperative hernia, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. Id. The Note at the end of diagnostic code 7338 provides that a 10 percent is added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. 38 C.F.R. § 4.114, Diagnostic Code 7338, Note. Rating prior to May 1, 2019: Turning to the evidence of record from the beginning of the appeal period, the Veteran was afforded a VA examination for hernias in May 2015, during which the examiner noted the diagnosis of bilateral inguinal hernias that were repaired in 2010. However, on physical examination, the examiner did not detect any of the left or right hernia. The examiner also noted that there was no indication for a supporting belt. The Veteran had surgical scars; however, they were not painful and/or unstable, nor was the total area of all related scars greater than 39 square centimeters (six square inches). The examiner noted that there was no functional impact of bilateral hernia; and related the hernia with the Veteran's service. In the June 2015 rating decision, the RO granted service connection for bilateral inguinal hernia with a noncompensable rating from January 23, 2014, date of receipt of the claim. The Veteran was afforded another VA hernias examination in November 2015. The examiner noted that the Veteran had been diagnosed with bilateral inguinal hernias in 2010, which were repaired in service. The Veteran reported that he was mostly asymptomatic, however, the groin area would get sore with physical activities. He also reported that he had not noticed a lump in the area. On examination, no right or left side hernia was detected. The Veteran did have scars related to the hernia surgery, but the examiner stated that none were painful and/or unstable, nor was the total area of all related scars greater than 39 square centimeters (six square inches). The Veteran did not have any other pertinent physical finding, complications, conditions, signs and/or symptoms related to his repaired hernias, and his hernia condition did not impact his ability to work. Subsequently, based on the November 2015 examination, in the February 2016 rating decision, the RO continued zero percent rating for the service-connected bilateral hernia. The Veteran filed a notice of disagreement in May 2016 and stated that his hernias affected his quality of life and would continue to do so for the rest of his life. Subsequently, the RO issued a statement of the case in August 2016, continuing the noncompensable disability rating for the service-connected bilateral hernias. The Veteran timely appealed the matter to the Board in September 2016. The Veteran submitted a written statement in support of the claim in November 2017, in which he reported that he suffered pain and discomfort daily due to his bilateral inguinal hernias. He also indicated the condition caused pain and discomfort when he performed daily activities like yard work and exercises. He also stated that he experienced bulging at the affected areas. Consequently, the Veteran was afforded another VA examination for hernias in December 2017. The Veteran reported experiencing bilateral groin pain after lifting heavy objects and stated that he had not sought medical care for his inguinal hernia condition in years. On examination, there was neither right nor left hernia protrusion, and there was no indication that a supporting belt was needed. As before, the Veteran was shown to have scars related to the hernia surgery, but the examiner stated that none were painful and/or unstable, nor was the total area of all related scars greater than 39 square centimeters (six square inches). The examiner found that the Veteran did not have any other pertinent physical finding, complications, conditions, signs and/or symptoms related to his repaired hernias, and his hernia condition did not impact his ability to work. In a May 2018 correspondence, the Veteran indicated that VA physician advised that hernias had to be repaired. Therefore, in March 2019, the Board remanded the matter to obtain UpToDate VA treatment records and afford the Veteran a new VA examination for hernias. Consequently, the Veteran was afforded another VA examination for hernias in May 2019, during which the examiner noted the Veteran underwent bilateral hernias repair in October 2018. The Veteran reported that he had pain by lifting/carrying and pushing/pulling activities. On examination, the examiner detected no right hernia; however, he noted left side small hernia which were recurrent and appeared operable and remediable. There was no indication that a supporting belt was needed. As before, the Veteran was shown to have scars related to the hernia surgery, but the examiner stated that none were painful and/or unstable, nor was the total area of all related scars greater than 39 square centimeters (six square inches). The examiner also noted rectus abdominis diastasis. As a functional impact, the examiner noted that activities involving lifting/carrying, pushing/pulling cause bilateral inguinal pain. Activities involving tensing of the abdominal muscles (crunches, sit-ups, Valsalva activities including lifting/carrying and pushing/pulling) cause upper abdominal bulging. Subsequently, in a September 2020 rating decision, the RO granted a temporary 100 percent disability rating from October 10, 2018 to December 31, 2018 based on surgical treatment of hernias necessitating convalescence. The RO also granted service connection for diastasis recti with noncompensable disability and increased the disability rating to 10 percent for the service-connected bilateral inguinal hernias with an effective date of May 1, 2019 based on the May 2019 VA examination. Also, the RO issued a supplemental statement of the case in September 2020, denying initial compensable rating for the service-connected bilateral hernia and returned the matter to the Board. Regarding the October 2018 bilateral inguinal hernias surgery, the Board notes that the VA treatment records indicate that the Veteran underwent a bilateral inguinal hernias repair on October 10, 2018 at Boston VA Medical Center. A November 2018 VA medical record has notation that the Veteran was advised to return to work on December 3, 2018 without restrictions. As noted above, the RO granted a temporary rating of 100 percent for recovery period from October 10, 2018 to December 31, 2018. The Board finds the grant was proper because there is clear indication in the evidence of record that the Veteran had no restrictions as of December 3, 2018 and might return to work. Therefore, the grant of temporary 100 percent rating through end of the month of December 2018 under 38 C.F.R. § 4.30 was proper. Based on the above described evidence, the Board finds that the Veteran's bilateral inguinal hernia were non compensable prior to May 1, 2019, except the convalescent period from October 10, 2018 to December 31, 2018 due to surgical treatment of hernias, because both left and right side hernias were small, reducible, or without true hernia protrusion. The Board acknowledges the Veteran's contentions regarding his symptoms. He is competent to make his assertions based on his observable symptomatology and the Board finds him competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As noted above, during earlier examinations, including May 2015, November 2015 and December 2017, the Veteran reported that mostly his hernias were asymptomatic, and he did not receive treatment for several years. In the November 2017 statement, the Veteran reported that he suffered pain and discomfort daily due to his bilateral inguinal, which indicates that his hernias started bothering him more for which he received treatment in October 2018. As noted above, the Veteran has receipt temporary 100 percent rating for recovery period. And after the recovery period was over, the VA examiner noted the left hernia during the May 2019 examination, and the RO granted 10 percent rating for that. Hence, the Board finds that preponderance of the evidence of record is against the finding that the Veteran's hernia warranted a compensable rating prior to May 1, 2019 because no hernia was detected during VA compensation and pension examinations until May 2019. Rating from May 1, 2019 to the present: As described above, in the September 2020 rating decision, the RO increased the disability rating from 0 to 10 percent for the service-connected bilateral inguinal hernias with an effective date of May 1, 2019 based on the May 2019 VA examination. Also, the RO issued a supplemental statement of the case in September 2020, denying initial compensable rating for the service-connected bilateral inguinal hernias and returned the matter to the Board. Subsequently, the Board remanded the matter in July 2021 to obtain a new VA examination to ascertain the current nature and severity of the service-connected bilateral hernia. Consequently, the Veteran was afforded another in-person examination in July 2021, during which the examiner noted that the Veteran underwent a left inguinal hernia repair in September 2019. The Veteran reported that he has persistent stinging and burning pain at the hernia sites with the left worse than the right. On physical examination, there was neither right nor left hernia was detected, and there was no indication that a supporting belt was needed. The Veteran was shown to have scars related to the hernia surgery, but the examiner stated that none were painful and/or unstable, nor was the total area of all related scars greater than 39 square centimeters (six square inches). As a functional impact, the examiner noted that activities involving lifting/carrying, pushing/pulling cause bilateral inguinal pain. Activities requiring movement of the lower extremities cause bilateral inguinal pain. Activities involving positioning of the lower extremities (bending, twisting, pivoting, squatting) cause bilateral inguinal pain. Activities involving tensing of the abdominal muscles (crunches, sit-ups, Valsalva activities including lifting/carrying and pushing/pulling) causes upper abdominal bulging. Even though the examiner did not detect any hernia on physical examination, the RO did not reduce the disability rating from currently assigned 10 rating because just one examiner is not sufficient to reduce the rating. Therefore, the RO issued a supplemental statement of the case in September 2021, continuing the grant of 10 percent rating and returned the matter to the Board for appellate consideration. Based on the above described evidence of record, the Board finds that the Veteran's bilateral inguinal hernias did not meet the criteria for a 30 percent rating from May 1, 2019 because there was no hernia detected and there was no indication for a supporting belt was noted in the July 2021 VA examination. As noted above, during the May 2019 examination, the examiner detected the left hernia but not the right hernia. Since, the right hernia is not compensable, an additional 10 percent rating is not warranted under diagnostic code 7338. See 38 C.F.R. § 4.114, Diagnostic Code 7338. The Board acknowledges the Veteran's report of consistent stinging pain in bilateral inguinal hernia as noted in the July 2021 VA examination, for which he is already in receipt of 10 percent rating since there was no hernia detected during the July 2021 examination. However, there is no VA examination that noted small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible hernia. Therefore, a higher rating in excess of 10 percent is not warranted for the service-connected bilateral hernia. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to a disability rating in excess of 10 percent from May 1, 2019 to the present for the Veteran's service-connected bilateral hernias. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, Associate Counsel 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.