Citation Nr: 21025888 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-47 947 DATE: April 29, 2021 ORDER Entitlement to an increased rating of 10 percent for painful scars, bilateral inguinal hernia repair residuals, from September 14, 2011, is granted. REMANDED Entitlement to a compensable evaluation for a bilateral inguinal hernia is remanded. Entitlement to an initial evaluation in excess of 10 percent for anxiety disorder, prior to January 2, 2019, and in excess of 30 percent thereafter is remanded. FINDING OF FACT For the period on appeal, the Veteran’s bilateral groin scars have been painful. CONCLUSION OF LAW For the period on appeal, the criteria for a 10 percent rating for painful scars, bilateral inguinal hernia repair residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Codes 7804. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from February 1985 to December 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In July 2019, the Board remanded the instant issues on appeal for further development. The issues have returned to the Board. With specific regard to the increased rating claim for service-connected anxiety disorder, while the matter was in remand status, in a November 2020 rating decision, the RO increased the Veteran’s evaluation for anxiety disorder from 10 percent to 30 percent, effective January 2, 2019, the date of a VA treatment record. As that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This issue has been restated accordingly. As regards to the increased rating claim for residuals of a bilateral inguinal hernia repair, the Board will initially summarize the procedural history of this claim. In a February 2010 rating decision, the RO granted service connection for scars of a bilateral inguinal herniorrhaphy repair at a noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7805, effective August 18, 2009. On September 14, 2011, the Veteran filed a claim of entitlement to an increased rating for his service-connected scars of a bilateral inguinal herniorrhaphy repair. The RO continued the noncompensable rating in a July 2013 rating decision, which the Veteran appealed in February 2014. As previously indicated, the Board remanded the issue in July 2019. While the matter was in remand status, in a November 2020 rating decision, the RO recharacterized the service-connected disability as painful scars, bilateral inguinal hernia repair residuals and increased the rating to 10 percent under Diagnostic Code 7804, effective December 30, 2019, the date of a VA examination. As that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. See id. This issue has been restated accordingly. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, it does not appear that the Veteran contends he cannot obtain or maintain substantially gainful employment due to his service-connected disabilities on appeal. Therefore, no further consideration of entitlement to a TDIU is warranted based on the facts of this case. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule 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. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that 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. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that “staged ratings” are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Entitlement to an increased rating of 10 percent for painful scars, bilateral inguinal hernia repair residuals, from September 14, 2011, is granted. The Veteran claims entitlement to an increased disability rating for painful scars, bilateral inguinal hernia repair residuals. The Veteran is currently rated at 10 percent for his service-connected disability under 38 C.F.R. § 4.118, Diagnostic Code 7804. As previously discussed, the RO increased the Veteran’s rating to the current 10 percent evaluation, effective December 30, 2019, in a November 2020 rating decision. Prior to the increase, the Veteran’s bilateral scars were rated as noncompensable under Diagnostic Code 7805, effective August 18, 2009. The Veteran filed a claim for an increased evaluation of his service-connected bilateral scars on September 14, 2011. The regulations pertaining to rating skin disabilities were most recently revised effective August 13, 2018. Claims, such as this, pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The pertinent skin regulations are as follows. Prior to August 13, 2018 Diagnostic Code 7800 provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. The particular criteria set out under Diagnostic Code 7800 provide for a 10 percent rating with one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are evaluated as: area or areas of 144 square inches (929 sq. cm.) or greater (40 percent); area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) (30 percent); area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) (20 percent); and area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) (10 percent). Under Diagnostic Code 7802, scars not of the head, face or neck, which are superficial and nonlinear are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). August 13, 2018, onward Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s intent is that claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Diagnostic Code 7800 remained the same. Diagnostic Code 7801 was amended to remove “deep and nonlinear scars” and was replaced with “underlying soft tissue damage.” Diagnostic Code 7802 was amended to remove “superficial and nonlinear” and was replaced with “not associated with underlying soft tissue damage.” Note (1) now provides that for 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) changed to a separate evaluation may be assigned for each affected zone 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 Codes 7804 and 7805 were unaffected by the 2018 recent revisions. The Board notes that within a year of the filing his claim for increased compensation for his scars, the Veteran underwent a VA examination in January 2012. The examiner provided a diagnosis of surgical scars, bilateral inguinal herniorrhaphy. The Veteran reported that he had underwent bilateral inguinal herniorrhaphy in 1989. He further reported that he had repeat left hernia repairs to the left side in 1992 and 2005. The examiner noted that neither scar was painful or unstable. The scars were linear and measured with lengths of 11 cm. and 12 cm. The examiner did not note any limitation of function due to the scars. The Veteran was afforded another VA examination in December 2019. The examiner provided diagnoses of left groin inguinal surgery scar and right groin inguinal surgery scar. The examiner did not find the scars to be unstable; however, she noted that both were painful. The examiner described the pain as “very painful and tender to touch.” The examiner noted that the left groin inguinal surgery scar measured 6 cm. in length and 0.5 cm. in width. The right groin inguinal surgery scar measured 10 cm. in length and 0.4 cm. in width. The examiner did not note any limitation of function due to the scars. The Veteran has consistently attested to the painful nature of his scars. During the February 2019 Board hearing, the Veteran testified that his scars are painful to the touch. In a January 2021 informal hearing presentation (IHP), the Veteran’s representative notes that the Veteran has indicated that his scars have been tender and painful since his hernia surgeries. The Veteran underwent his first surgery in 1989. Considering the pertinent evidence in light of the governing legal authority, and resolving all doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted throughout the appeal period for the Veteran’s bilateral groin scars. The December 2019 VA examiner indicated that the scars are painful. Further, throughout the appeal period the Veteran has repeatedly reported that both scars are painful and have been since his initial hernia surgery in 1989. As previously noted, the Veteran is competent to report symptoms and observations, such as a painful scar, because this requires only personal knowledge as it comes through one’s senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His reports of painful bilateral groin scars are also credible, as they are both internally consistent and consistent with the record. See Madden v. Gober, 125 F.3d 1477, 1481 (holding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). To the extent the January 2012 VA examiner rendered findings to the contrary, the evidence is, at minimum, in equipoise. However, the preponderance of the evidence is against a rating in excess of 10 percent. Under both versions of the skin regulations, ratings in excess of 10 percent under Diagnostic Code 7804 require the presence of three or more scars that are unstable or painful, which is not the case here. While Note (2) allows for an additional 10 percent rating where a scar is both unstable and painful, that also is not the case here. The Board can point to no other diagnostic code that would provide a basis for the assignment of any higher or separate rating under any version of the regulations. Diagnostic Code 7800 is not applicable as the Veteran’s scars do not pertain to the head, face, or neck. The groin scars are not of an area of at least 6 inches (Diagnostic Code 7801) or 144 inches (Diagnostic Code 7802). They are not shown to cause limited functioning or have any disabling effects (Diagnostic Code 7805). For all of the above-stated reasons, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran’s painful scars, bilateral inguinal hernia repair residuals from September 14, 2011, the date of receipt of the increased rating claim. In reaching this decision the Board considered the doctrine of reasonable doubt. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a compensable evaluation for a bilateral inguinal hernia is remanded. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a VA examination to assess the current severity of his service-connected bilateral inguinal hernia. The examiner was instructed to provide a retrospective assessment of the severity of the disability since September 2011. In December 2019, the Veteran was afforded a VA hernia examination. The examiner did not provide a retrospective assessment of the severity of the disability since September 2011. The examiner did not provide an explanation as to why such an assessment was unnecessary. Accordingly, to ensure compliance with the July 2019 remand directives and that the record reflects the current severity of the Veteran’s bilateral inguinal hernia disability, a remand is required for a VA hernia examination. See Stegall, 11 Vet. App. at 271. 2. Entitlement to an initial evaluation in excess of 10 percent for anxiety disorder, prior to January 2, 2019, and in excess of 30 percent thereafter is remanded. Pursuant to the July 2019 remand instructions, the Veteran was afforded a VA psychiatric examination in December 2019. The examiner was instructed to provide a retrospective assessment of the severity of the disability since September 2011; however, the examiner did not provide such an assessment. Furthermore, the examiner did not provide an explanation as to why such an assessment was unnecessary. Thus, in light of the above deficiency of the December 2019 VA psychiatric examination, another remand is required for completion of the directives of the July 2019 Board remand. See Stegall, 11 Vet. App. at 271. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected bilateral inguinal hernia disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a) Describe the present nature and severity of the bilateral inguinal hernia. (b) Identify whether it is one of the following: Large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable; Small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible; or Postoperative recurrent, readily reducible, and well supported by truss or belt. (c) Comment on the severity of the Veteran’s service-connected bilateral inguinal hernia throughout the rating period. Specifically, provide a retrospective assessment of the severity of the Veteran’s bilateral inguinal hernia since September 2011. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected anxiety disorder. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a) The present severity of the Veteran’s anxiety disorder, including any occupational impairment caused by the condition. (b) Comment on the severity of the Veteran’s service-connected anxiety disorder throughout the rating period. Specifically, provide a retrospective opinion of its severity since September 2011. The examiner should also provide an assessment of the Veteran’s occupational impairment in this period of time. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 4. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.