Citation Nr: 21031546 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-05 122 DATE: May 24, 2021 ORDER An initial compensable rating of 10 percent for hernia but no higher prior to December 14, 2020 is warranted. A rating in excess of 10 percent for hernia is denied. Service connection for a cervical spine disability to include as secondary to a left shoulder disability is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran hernia was manifested by pain limiting functional ability and symptoms more nearly approximated to postoperative recurrent, readily reducible hernia, and well supported by truss or belt. 2. The competent evidence does not tend to show a postoperative hernia that is recurrent, not readily reducible, and not well supported by truss. 3. The Veteran's current cervical spine disability not secondary to service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Code 7338. 2. The criteria for service connection for a cervical spine disability due to service or proximately due to or aggravated by service connected left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2001 to March 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA). These matters were remanded by the Board in July 2018 and September 2019. A March 2021 rating decision granted service connection for right shoulder, lumbosacral, and left knee disabilities. As such, these service connection issues are no longer before the Board. Additionally, a later March 2021 rating decision granted a 10 percent rating for left inguinal hernia, effective December 14, 2020. This increased rating issue remains on appeal. 1. Entitlement to an initial compensable rating prior to December 14, 2020 and in excess of 10 percent thereafter for hernia Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); 38 C.F.R. § 3.159(a). The Veteran contends that he is entitled to an initial compensable rating for his service-connected hernia, evaluated under Diagnostic Code 7338. Under Diagnostic Code 7338, a zero percent disability rating is assigned for a small hernia, reducible, or without true protrusion; or for a hernia that is not operated but remedial. A 10 percent disability rating is assigned for a postoperative recurrent, readily reducible hernia, and well supported by truss or belt. A 30 percent disability rating is assigned for small, postoperative recurrent, or unoperated irremediable hernia, not well supported by truss, or not readily reducible. A 60 percent disability rating is assigned for large, postoperative, recurrent hernia, not well supported under ordinary conditions and not readily reducible, when considered inoperable. 38 C.F.R. § 4.114, Diagnostic Code 7338. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds an initial 10 percent rating but no higher for the service-connected hernia prior to December 14, 2020 is warranted. A June 2011 VA examination reported shows that the Veteran was diagnosed with a left inguinal hernia while in active service. Since his in-service diagnosis, the Veteran reported he had pain with certain movements such as twisting to the left, leaning to the left, or lifting heavy items off the ground. During these activities, the Veteran reported experiencing sensations of pulling, tightness, and pain in the mid inguinal region to the left. The Veteran reported he did not experience pain every day. He reported he has learned to avoid certain movements that brings discomfort. Mild pain with prolonged walking was reported, and he could walk about a mile at the most. He reported he did not participate in any running or athletics but did participate in a small amount of weightlifting. The examiner noted that he did not wear a truss. No complications of the inguinal hernia were noted. The examiner reported that no treatment was required except the avoidance of inciting movements. An October 2013 VA hernia examination report shows that the Veteran was assessed with an inguinal hernia condition. No previous surgery was noted but the hernia appeared operable and remediable. The hernia of the left side was noted a small and readily reducible. No indication for a supporting belt was assessed. No other physical findings, complications, conditions, signs and/or symptoms related to hernia were assessed. An April 2015 private treatment record shows that the Veteran reported left groin pain. An abdomen exam noted discomfort to palpation along the distal left inguinal area which was consistent with a hernia. No tenderness to palpation was noted. The private physician noted that surgery was not needed to repair the hernia but that if pain continued, surgery could be conducted. A December 2020 VA hernia examination report shows that the Veteran was diagnosed with an inguinal hernia and an abdominal scar associated with a hernia repair surgery. The examiner noted that the Veteran underwent hernia repair surgery on January 8, 2018 and had mesh placed. He wore a belt. No bruising, discoloration, or protruding were assessed. The examiner noted that he Veteran's hernia could be well supported by a truss or belt. No other pertinent physical findings, complications, conditions, signs, or symptoms related to the hernia were assessed. The examiner noted that the Veteran did have a residual scar that was not painful or unstable, or had a total area equal to or greater than 39 square centimeters. Functional impact was assessed as the Veteran's hernia condition limited his ability to carry heavy objects greater than 50 pounds, stand for prolonged periods, take prolonged walks, or running. *** Initially, the Board finds that at no point during the appeal period has the Veteran demonstrated any residual symptoms related to his hernia surgery scar for which he can be compensated. The rating criteria under 38 C.F.R. § 4.118 contemplate painful scars, non-linear and non-superficial scars, large scars, burn scars, and scars of the head, face, or neck. The probative medical evidence of record does not show that the Veteran's scar is any of these. As such, a separate compensable rating for the Veteran's scar is not warranted. Regarding the Veteran's service connected hernia prior to December 14, 2020, the Veteran reported and VA examinations showed that symptoms consisted of pain the limited his functional abilities with moving in certain directions, picking up heavy items, and walking/running for long distance. VA examiners noted that the Veteran's hernia was described as a small and readily reducible. No indication for a supporting belt was assessed prior to December 14, 2020. Although Diagnostic Code 7338 does not contemplate the symptoms described by the Veteran, it is the most applicable diagnostic code. Indeed, as an inguinal hernia is specifically listed in VA's Rating Schedule, the Board finds that analogous diagnostic codes need not be explored. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). Regardless, the fact remains that the Veteran has pain as a result of his hernia that resulted in functional impairment prior to December 14, 2020. Therefore, when considering that his pain is limited to when he is doing physical activities, the Board finds that a 10 percent initial rating is warranted under Diagnostic Code 7338 for the hernia prior to December 14, 2020. The Veteran's pain most closely approximates the residuals of inguinal hernia that is readily reducible and well supported by truss or belt. Although the diagnostic criteria do not afford a compensable rating for pain alone, when considering the severity of the Veteran's pain symptoms, the Board resolves doubt in his favor in finding that the pain caused by his hernia is the equivalent of the functional impairment contemplated by a hernia that is readily reducible and well supported by trust or belt. The Board finds that entitlement to a rating in excess of 10 percent for the hernia is not warranted. As noted above, assignment of a 30 percent rating under Diagnostic Code 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 consisting of private treatment records and VA examination reports does not show that the Veteran's hernia is recurrent, not readily reducible, and not well supported by truss. The Board notes that the Veteran reported pain which is considered under the criteria for his currently assigned 10 percent rating. Thus, as the competent evidence does not tend to show 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 over the entire appeal period. 2. Entitlement to service connection for a cervical spine disability to include as secondary to a left shoulder disability The Veteran asserts that his cervical spine disabilty was incurred during service. Alternatively, he contends that the cervical spine disability is secondary to a service connected left shoulder disabilty. In this regard, the Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. A review of the Veteran's service treatment records shows that the Veteran was not assessed with nor did he report any cervical spine injury or disability. An October 2004 private treatment record shows that the Veteran was experiencing pain between his shoulder blades that was noted not to be related to his cervical spine. The private physician noted that MRI results indicated normal cervical spine. A June 2011 VA examination report shows that the Veteran reported developing pain his in neck after a left shoulder injury. The Veteran reported pain radiating into the neck and trapezius areas. The examiner assessed the Veteran with a chronic cervical strain. Cervical spine imagining was normal. The examiner reported that a 2004 MRI of the cervical spine showed degenerative disc disease. A December 2020 VA cervical spine examination report shows that the Veteran was diagnosed with a cervical strain with cervical radiculopathy of the right upper extremity. After a review of the evidence of record the examiner noted that the service treatment records were silent for any reported or diagnosis of a neck condition. A separation examination from February 2004 showed no self-reports or diagnosis of a neck/cervical spine. Therefore, based on a review of the medical evidence and examination of the Veteran, that it was less likely than not that the cervical spine disabilty was related to active service. Regarding secondary service connection, the examiner remarked that the left shoulder condition would not cause or aggravate the neck condition as the joints are independent of one another. Therefore, the examiner opined that it was less likely than not that the cervical spine disabilty was caused aggravated the service connected left shoulder disabilty. After a review of the evidence of record, the Board finds that that the preponderance of the evidence is against the claim for service connection for a cervical spine disability. The preponderance of the evidence does not establish that a cervical spine disability had onset during the Veteran's period of service as the service treatment records are silent for a diagnosis of cervical spine disability. Thus, the objective medical evidence from the Veteran's period of service does not show in-service onset a cervical spine disabilty. Additionally, the Board notes that the Veteran's chronic cervical spine strain was first diagnosed many years after service. This gap in time is a factor that tends to weigh against service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The Board does note that the June 2011 VA examiner reported that an October 2004 MRI diagnosed cervical degenerative disc disease, which would be within one year after separation from service. However, the Board notes that the October 2004 private MRI is of record and it "an essentially normal cervical spine MRI." Therefore the 2011 VA examiner's statement is based on an inadequate factual basis and of no probative value and/or weight. The Board notes that the December 2020 VA examination report and associated medical opinion demonstrate that a cervical spine disability was not related to active service. The examiner considered the lay and medical evidence and concluded there was no in-service event that could have led to the development of the Veteran's cervical spine disability. Although the Veteran reported neck pain in 2004 within the first year after separation from active duty, the October 2004 private treatment record, as noted above, showed a normal MRI for the cervical spine, and the private physician noted that the neck pain was actually a result a shoulder disability and the Veteran is service-connected for both shoulders. In sum, the 2020 VA examiner's opinion is probative because the examiner considered the relevant lay and medical evidence and offered a rationale. Regarding secondary service connection for a cervical spine disability secondary to a service connected left shoulder disability, the Board finds that service connection on a secondary basis is not warranted as the more probative medical evidence does not tend to show an etiological link between the service-connected left shoulder disability and the cervical spine disabilty. The December 2020 VA examiner opined that diagnosed cervical spine disability was not caused or aggravated by the service-connected left shoulder disability. The examiner explained that cervical spine and shoulder were independent joints and they would not cause or aggravate each other. The Board finds that the 2020 opinion weighs heavily against secondary service connection. To the extent the Veteran asserts that a cervical spine disability had onset in service or secondary to service-connected left shoulder disability, as a lay person he does not have the medical expertise to diagnose sleep apnea or determine its onset. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Although competent to report cervical spine pain, the Veteran is not competent to attribute a cervical spine disability to one diagnosis or another, as such requires knowledge of medical principles. Additionally, the December 2020 examiner considered the Veteran's lay statements as well as reviewed the Veteran's medical records. Overall, the lay evidence does not establish that a cervical spine disability had onset during the Veteran's period of service, is otherwise caused by service, or was caused or aggravated by service connected left shoulder disability. Therefore, service connection for a cervical spine disabilty is not warranted. (Continued on the next page) In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.