Citation Nr: 21008886 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-31 811 DATE: February 18, 2021 ORDER Entitlement to a disability rating of 40 percent, but no greater, for lumbar spine degenerative arthritis is granted. Entitlement to a disability rating in excess of 10 percent for right inguinal hernia repair residuals is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine symptomatology presented in such a manner as to demonstrate flexion of 30 degrees or less. 2. There is no evidence of a postoperative hernia that is recurrent, not readily reducible, and not well supported by truss. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent for lumbar spine degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5242. 2. The criteria for a rating in excess of 10 percent for right inguinal hernia repair residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Code 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from December 1980 to January 1985. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. These matters were previously before the Board in September 2017 and September 2019 when they were remanded to the Agency of Original Jurisdiction (AOJ) for VA examinations. The Board finds that sufficient evidence exists to make a decision on the claim, and that the directives of the prior remand have been substantially complied with. The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran’s claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating of 40 percent, but no greater, for lumbar spine degenerative arthritis The Veteran contends that his lumbar spine degenerative arthritis is worse than the assigned disability rating reflects. Accordingly, he received a VA examination to assess the current severity. When evaluating any musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. 38 C.F.R. §§ 4.40, 4.45, and 4.59. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Code 5242. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Normal ranges of motion of the thoracolumbar spine are flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, lateral flexion 0 degrees to 30 degrees bilaterally, and lateral rotation from 0 degrees to 30 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. The Board has considered the evidence of record and finds that the Veteran’s symptoms more closely approximate a 40 percent disability rating than a 10 percent disability rating. Pursuant to the September 2019 Board remand, the Veteran received a January 2020 VA examination to assess the current severity of his lumbar spine degenerative arthritis. The examination revealed that the Veteran’s lumbar spine flexion range of motion was limited to 20 degrees. The examiner further noted that the Veteran has a range of motion to zero degrees during flare-ups. The examiner documented that the Veteran did not experience neurological symptoms, or intervertebral disc syndrome. Thus, the Veteran’s lumbar spine range of motion more closely approximated a 40 percent disability rating than a 10 percent disability rating. The Board finds that considering the totality of the evidence of record and resolving doubt in favor of the Veteran, his disability more closely approximates a 40 percent rating for the entire period on appeal. A 50 percent disability rating or higher is not warranted, as the record is silent for unfavorable ankylosis of the thoracolumbar spine. 4.71a, Diagnostic Code 5242. All potentially applicable diagnostic codes have been considered, and there is no basis to assign a rating in excess of 40 percent for the Veteran’s lumbar spine degenerative arthritis. See Schafrath, 1 Vet. App. at 593. In light of the aforementioned evidence, the Board finds that the Veteran’s symptoms more closely approximate a 40 percent disability rating. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. Entitlement to a disability rating in excess of 10 percent for right inguinal hernia repair residuals The Veteran contends that his right hernia repair residuals are worse than the assigned disability rating reflects, as he experiences recurring pain associated with his right hernia. The Veteran’s right inguinal hernia is currently rated as 10 percent disabling under DC 7338 throughout the appeal period. Under DC 7338, a 30 percent rating is warranted for small, postoperative recurrent inguinal hernia, or unoperated irremediable inguinal hernia, that is not well supported by truss or not readily reducible. The highest rating of 60 percent is warranted for large, postoperative, recurrent inguinal hernia that is not well supported under ordinary conditions and not readily reducible, when considered inoperable. 38 C.F.R. § 4.114, DC 7338. 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, DC 7338. The previous May 2011 VA examiner noted that the Veteran was initially diagnosed with a right inguinal hernia in 1983. The Veteran experienced chronic pain in his right groin area, underwent surgery, and did not believe he had a recurrent herniation. The examiner noted that the Veteran did not currently present with a hernia, with no evidence of recurrence, and it did not significantly impact daily functioning. Pursuant to the September 2019 Board remand, the Veteran received a VA examination in January 2020. The examiner noted there was no hernia detected upon examination and there was no indication for a supporting belt. The Veteran stated at his Board hearing that he wore a belt for hernia residuals. The examiner also noted that the Veteran’s hernia condition does not impact his ability to work. Based on the foregoing, the Board finds that entitlement to a rating in excess of 10 percent for a right inguinal hernia is not warranted. As noted above, assignment of a 30 percent rating under DC 7338 is if a hernia is for small, postoperative recurrent inguinal hernia, or unoperated irremediable inguinal hernia, that is not well supported by truss or not readily reducible. The evidence of record does not show that the Veteran’s right inguinal hernia is recurrent, not readily reducible, and not well supported by truss. According to the January 2020 and May 2011 VA examination, no evidence of a hernia was detected. The Board notes that the Veteran reported pain. However, the Veteran’s pain has not resulted in a recurrence of his previous hernia. DC 7338 does not provide for a higher rating based on residual pain resulting from a hernia repair. Thus, in the absence of evidence of a postoperative hernia that is recurrent, not readily reducible, and not well supported by truss or belt, a rating of 30 percent or higher is not supported by the evidence of record or warranted. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board had determined a preponderance of the evidence weighs against the Veteran’s claim. Accordingly, the claim for a disability rating in excess of 10 percent for right inguinal hernia repair residuals is denied. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.