Citation Nr: 21008946 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-24 128 DATE: February 18, 2021 ORDER Entitlement to an initial rating higher than 10 percent for bilateral inguinal hernia repair residuals is denied. Entitlement to an initial compensable rating for service connected hypertension is denied. FINDINGS OF FACT 1. The Veteran’s bilateral inguinal hernia repair residuals do not more nearly approximate a small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. 2. The symptoms of the Veteran’s service connected hypertension have not more nearly approximated predominant diastolic blood pressure of 100 or more, or a predominant systolic blood pressure of 160 or more at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for bilateral inguinal hernia repair residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.114, diagnostic code (DC) 7338. 2. The criteria for an initial compensable rating for service connected hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, DC 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2008 to May 2009, and April 2010 to May 2011. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from December 2011 and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia and respectively granted a 10 percent evaluation for hernia repair residuals, and a noncompensable evaluation for hypertension. In May 2012, the Veteran filed his notice of disagreement with, among one other thing, the 10 percent rating assigned for hernia repair residuals, and in August 2012 filed his notice of disagreement with, among one other thing, the noncompensable evaluation for hypertension. The Veteran was issued statements of the case in June 2015 and August 2015, and in September 2015 perfected his appeal to the Board. In September 2018, the Board among one other thing, remanded the Veteran’s claims for a compensable rating for hypertension and a higher than 10 percent rating for hernia repair residuals for new VA examinations. The Veteran requested a virtual Board hearing before a Veterans Law Judge which was scheduled for December 2020. However, the Veteran failed to appear without good cause shown. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Hernia repair residuals The Veteran’s hernia repair residuals are currently rated 10 percent disabling under DC 7338. Pursuant to DC 7338, a small inguinal hernia, reducible, or without true hernia protrusion is rated noncompensable. An inguinal hernia that is not operated, but is remediable, is rated noncompensable. A postoperative recurrent inguinal hernia, readily reducible, and well supported by truss or belt is rated 10 percent disabling. A small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, is rated 30 percent disabling. A large inguinal hernia, postoperative recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable, is rated 60 percent disabling. 38 C.F.R. § 4.114, DC 7338. June 2011 post-service treatment records reflect that the Veteran was treated for neurogenic pain after his bilateral inguinal hernia repair which he reported was exacerbated by certain abdominal exercises. He stated that on several occasions there has been abdominal “swelling” which was noticed by his wife and friends, but which was not associated with gas. An October 2011 VA examination report indicated that the Veteran suffers from pain in his right lower quadrant that radiates into his bilateral lower quadrants. He stated his pain was a 10 out of 10 on his right side, and 8 out of 10 in his lower quadrant, mostly throbbing, and requires rest for relief. An October 2019 VA examination report reflected that the Veteran reported intermittent pain and swelling on his abdominal area. There was no hernia detected on either the left or right side, no pertinent physical findings, complications, conditions, signs or symptoms related to his inguinal hernia, and the examiner noted that the Veteran’s hernia did not impact his ability to work. The examiner reported that the Veteran’s inguinal hernia condition is asymptomatic, and that the examination was negative for pain, swelling, redness, or drainage for the residual hernia repair. The examiner noted that the Veteran was not wearing a truss or belt, and there were no functional limitations caused by the hernia. A rating higher than 10 percent for the Veteran’s service connected inguinal hernia repair residuals is not warranted for any portion of the rating period on appeal. In this regard, while the Veteran has reported pain that radiates into his bilateral lower quadrants and swelling in his abdominal area, the October 2019 examiner noted that there was no hernia detected on either the left or right side, and that his disability was asymptomatic. The examiner reported no functional limitations and noted that the Veteran was not wearing a truss or belt. The evidence of record thus reflects that the Veteran’s inguinal hernia repair residuals do not more nearly approximate a small post-operative recurrent inguinal hernia, or unoperated irremediable, not well supported by truss, or not readily reducible. Therefore, an initial rating higher than 10 percent is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Hypertension The Veteran’s hypertension is currently rated noncompensable under 38 C.F.R. § 4.104, DC 7101. Under DC 7101, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control. A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more. A 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more. 38 C.F.R. § 4.104. An August 2015 VA examination report reflected that the Veteran’s hypertension treatment plan included taking continuous medication, and blood pressure readings of 125/90, 130/81, 128/75 for an average blood pressure reading of 127/82. The examining nurse practitioner (NP) indicated that the Veteran’s hypertension impacted his ability to work. An October 2019 VA examination report reflected that the Veteran’s treatment plan included taking continuous medication for hypertension, and indicated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The Veteran’s blood pressure readings were 117/73, 116/72, and 103/61. The examiner reported that the Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to his hypertension. The examiner also noted that the Veteran’s hypertension did not impact his ability to work as his blood pressure is well controlled by his treatment. The preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for service connected hypertension under DC 7101. While the examination reports reflect that the Veteran takes prescribed medication for his hypertension, his diastolic pressure has ranged between 61 and 90, and his systolic blood pressure has ranged between 103 and 130. These blood pressure readings are sufficient for making an increased rating determination even considering the Veteran’s use of medication to control his blood pressure. See McCarroll v. McDonald, 28 Vet. App. 267. 276-77 (2016) (the Board may properly consider ameliorative effects of blood pressure medication in adjudicating claims for increased ratings for hypertension, because medication is specifically mentioned in DC 7101). While the Veteran contends that his hypertension warrants a higher rating, the evidence of record does not demonstrate findings of diastolic pressure of 100 or more, or systolic blood pressure predominantly of 160 or more at any time during the pendency of the Veteran’s appeal. The Veteran’s hypertension symptomatology does not more nearly approximate that contemplated by a higher disability rating, thus the claim for an initial compensable rating for service-connected hypertension must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. A claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). The Board notes the Veteran’s December 2020 statement that he was out of work since October 28, 2020 due to hypertension and neuropathy caused by coronary artery bypass graft surgery on September 23, 2019. However, the Veteran was granted a 100 percent rating based on this surgery from September 16, 2019 pursuant to 38 C.F.R. § 4.30. He requested an additional temporary total rating from October 28, 2020 to January 4, 2021 when he planned to return to work and is currently in receipt of a 100 percent rating following the expiration of the period of temporary total rating. The Veteran has therefore not alleged unemployability due to his service connected disabilities and further discussion of entitlement to a TDIU in this regard is unnecessary. Moreover, there is no evidence of symptoms of hypertension not contemplated by the criteria. Consequently, consideration of remand for referral for an extraschedular rating is not warranted. Long v. Wilkie, __ Vet. App. __, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Dec. 30, 2020). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.