Citation Nr: 21028904 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-40 611 DATE: May 12, 2021 ORDER Entitlement to a compensable evaluation for a postoperative inguinal hernia repair with a scar is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDING OF FACT The Veteran's hernia repair scar has been characterized as one stable, linear scar measuring 0.1 centimeters wide and 11 centimeters long, and it is not unstable or painful. CONCLUSION OF LAW The criteria for compensable evaluation for a postoperative inguinal hernia repair with a scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40-4.45, 4.59, 4.118, Diagnostic Code 7338. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Navy from May 1973 to March 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded in February 2020 for further development. They have been returned to the Board for further appellate review. Entitlement to a compensable evaluation for a postoperative inguinal hernia repair with a scar is denied. Neither the Veteran nor his representative has raised other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's postoperative inguinal hernia repair with a scar is currently assigned a noncompensable evaluation, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7338. Under Diagnostic Code 7338, a noncompensable rating is warranted where the inguinal hernia is small, reducible, or without true hernia protrusion, or where it is not operated, but remediable. A 10 percent rating is warranted where the inguinal hernia is postoperative recurrent, readily reducible and well supported by truss or belt. A 30 percent evaluation is warranted where the hernia is postoperative recurrent, or unoperated irremediable, not well supported by a truss, or not readily reducible. A 60 percent evaluation is warranted for a large, postoperative, recurrent hernia that is not well supported under ordinary conditions and not readily reducible, when considered inoperable. 38 C.F.R. § 4.114. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation. The Board notes that the evidence does not show that the Veteran's hernia is postoperative recurrent not well supported by a truss, or nor readily reducible. In fact, during a February 2020 VA examination, the examiner noted the Veteran did not have a recurrent inguinal hernia and there was not one detected upon examination. Therefore, the Veteran has not been shown to have met the criteria for a compensable rating under Diagnostic Code 7338. Although the Veteran does not have a current hernia, the evidence of record does show that the Veteran has post-operative scarring from his hernia repair. Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. Note (2) under Diagnostic Code 7804 provides that provides that a scar or scars that is both unstable and painful on examination may be assigned an additional 10 percent rating. See38 C.F.R. § 4.118, Diagnostic Code 7804. In a May 2013 VA examination report, the examiner noted the Veteran's postoperative hernia scar was not painful or unstable and did not cover a total area greater than 39 square centimeters. The examiner noted the scar could not be seen. In a February 2020 VA examination, the Veteran's hernia scar was measured at 11 centimeters by .01 centimeters. It was not found to be painful or unstable. Therefore, the residual hernia repair scar involves only one scar that is not painful or unstable. Therefore, a compensable evaluation is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). The Board further finds that the weight of the evidence is against a finding that any other Diagnostic Codes for rating scars are applicable or would result in a higher rating. See 38 C.F.R. § 4.118. Under Diagnostic Code 7801, scars other than on the head, face, or neck that are deep (i.e. associated with underlying soft tissue damage) or cause limited motion are rated as 10 percent disability for areas at least six square inches in size, 20 percent disabling for areas at least 12 square inches in size, 30 percent disabling for areas at least 72 square inches in size, and 40 percent disabling for areas at least 144 square inches in size. Under Diagnostic Code 7802, a maximum 10 percent disability rating is warranted where a scar that is not on the head, face, or neck is superficial, does not cause limitation of motion, and is at least 144 square inches in size. Because the Veteran's hernia repair scar has a maximum width of 0.1 centimeters, a maximum length of 11 centimeters these Diagnostic Codes are not applicable. See February 2020 VA examination report. Under Diagnostic Code 7805 for "other" scars or "other" effects of scars rated under Diagnostic Codes 7800, 7801, 7802, or 7804, any disabling effects not considered in the respective rating criteria for scars are to be evaluated under an appropriate diagnostic code. The evidence of record does not indicate, and the Veteran does not contend, that there are any other disabling effects resulting from the hernia repair scar. REASONS FOR REMAND Entitlement to service connection for a low back disorder is remanded. The Veteran was evaluated in connection with his claim in February 2020. At that time, the examiner diagnosed the Veteran with a lumbar strain. She noted the Veteran's assertions concerning the onset of his symptoms while he was in active service. At that time, the Veteran did not report experiencing flare ups but affirmed functional loss and/or impairment as he cannot walk very far and has a lot of balance issues. Range of motion testing resulted in abnormal measurements with a forward flexion to 90 degrees that caused functional loss, including difficulty with heavy lifting, prolonged walking, and the inability to run. The examiner noted the Veteran experienced pain on examination and weight bearing. The Veteran was not able to do repetitive use testing because he is wheelchair bound and has balance issues. The Veteran denied having additional loss of range of motion or functional loss during repetitive use and flare ups as his physical activity level is minimal due to several medical issues. Lastly, the examiner noted the Veteran did not experience pain on non-weight bearing. She indicated that passive range of motion could not be performed or was not medically appropriate. Ultimately, the examiner opined that it is less likely than not the Veteran's current low back disorder was incurred in or caused by his claimed in-service injury, event, or illness. She noted the Veteran was evaluated in service for low back pain but a subsequent examination in 1975 did not mention any complaints of low back pain. Rather, there is no mention of back issues until the 1980s and thereafter. Interestingly, she noted the Veteran was diagnosed with passive dependent personality disorder with a tendency to somaticize tension. Therefore, she believes the current low back pain is not due to service because negative findings at separation but likely psychological in origin. The Board finds the February 2020 VA examination report and medical opinion is inadequate for various reasons. Initially, a May 2020 VA treatment record reveals he has episodes of excruciating cramping pains in his lower back that radiate to his legs and feet. Additionally, the Veteran has been diagnosed with chronic low back pain, narrowing of the spinal canal, and spinal stenosis of the lumbar spine. The examiner did not mention any of these diagnoses and whether they were active or have resolved. In its February 2020 remand, the Board instructed the RO to obtain an opinion that addressed the Veteran's assertions. It does not appear the examiner considered all of the Veteran's assertions. A December 1973 record notes the Veteran reported that his back pain began during boot camp when his back hit the pipes on the ship. In an October 1974 record, the Veteran stated that he hurt his back in Vietnam. In a July 2005 statement in support of the claim, the Veteran indicated that he was pulled over the edge of the ship with a rope and hurt his back. None of these assertions are mentioned in the examination report or medical opinion. Additionally, the evidence raises a question of whether the Veteran's low back disorder pre-existed service. An enlistment examination report notes the Veteran's spine was normal. Therefore, he is considered sound at the time of entrance into the military. Thus, the presumption of soundness applies. In a March 1972 record, the physician indicated the Veteran had a history of low back pain. The Veteran reported that he was hit by a car three weeks prior to enlistment. Moreover, he stated that he had two traumatic accidents and sprain types of injuries to his lower back. A February 1974 treatment record notes the Veteran had a chronic back problem. He stated that he has had a back problem for about two years and that his duties in the U.S. Navy made it worse. In his May 2014 notice of disagreement, the Veteran stated that he had pre-existing back pain that was aggravated in service. Currently, the record does not contain an opinion that addresses this theory of entitlement. For the reasons stated above, remand is necessary for another VA examination and medical opinion. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any lumbar spine disorder that may be present. A copy of this remand should be given to the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine whether a low back disability clearly and unmistakably pre-existed service, and if so, whether such disability was clearly and unmistakably NOT aggravated therein beyond its natural progression. (The term "clear and unmistakable" means that the evidence is undebatable). If the examiner determines that a low back disorder did not clearly and unmistakably preexist the Veteran's service, he or she should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any low back disorder (diagnosed during the appeal period) manifested in service or is otherwise is causally or etiologically related to his military service, to include any injury and symptomatology therein. The Board notes that numerous service treatment records show he was evaluated and treated for low back pain in service. The examiner should consider the Veteran's assertions that he injured his back during service when he was pulled over the edge of the ship with a rope, when he hit his back on the pipes of the ship. The Board also notes that a January 1974 record indicates the Veteran's back was sore after falling off a ladder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) (Continued on the next page) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability is viewed in relation to its history," copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.