Citation Nr: 21053819 Decision Date: 08/31/21 Archive Date: 08/31/21 DOCKET NO. 16-25 902 DATE: August 31, 2021 ORDER Entitlement to a separate disability rating for ilio-inguinal nerve neuritis associated with right inguinal hernia repair at 10 percent, but no higher, is granted from December 3, 2012. Entitlement to an increased disability rating for obturator nerve neuritis associated with right inguinal hernia repair to 10 percent, but no higher, is granted from August 16, 2015. Entitlement to an increased disability evaluation of the genito-femoral nerve for severe incomplete paralysis associated with right inguinal hernia repair to 10 percent, but no higher, is granted from December 3, 2012. Entitlement to an increased rating for right inguinal hernia status post repair to 30 percent, but no higher, is granted. Entitlement to an increased disability rating in excess of 10 percent for painful right groin scar associated with right inguinal hernia status post repair, to include buttock scar associated with spinal stimulator placement, is denied. FINDINGS OF FACT 1. The Veteran submitted a new claim for increased disability rating for right inguinal hernia status post repair on December 3, 2012. 2. The Veteran submitted a VA Form 9 in July 2015, too late to be considered for an appeal of the December 3, 2012 claim for increased disability rating for right inguinal hernia status post repair. An appeal for the untimely submission of VA Form 9 was separately adjudicated. 3. In a separate quality review October 2020 rating decision, the VA Regional Office (RO) issued determinations of clear and unmistakable error (CUE) creating separate disability ratings for the finding in the September 2013 rating decision that had continued a noncompensable rating categorized as right inguinal hernia status post hernia repair with genito-femoral nerve neuropathy and surgical scar from December 3, 2012, and a separate disability rating for obturator nerve neuropathy that was adjudicated in the October 2015 rating decision. 4. The Veteran submitted a new claim for increased disability rating for right inguinal hernia status post repair on August 16, 2015. 5. The Veteran experienced constant pain, at times excruciating, at the right side ilio-inguinal nerve during the appeal period. 6. The Veteran experienced constant pain, at times excruciating, at the right-side obturator nerve during the appeal period from August 16, 2015. 7. The Veteran experienced severe incomplete paralysis of the genito-femoral nerve associated with right inguinal hernia repair during the appeal period from December 3, 2012. 8. The Veteran's right inguinal hernia status post repair is recurring, postoperative, and small during the appeal period. 9. The Veteran does not have more than two scars that are painful or unstable, or one or more scars that are both painful and unstable, or scars associated with underlying soft tissue damage, or scars of an area greater than 144 square inches or scars associated with the head, face, or neck. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate disability rating to 10 percent, but no higher, for ilio-inguinal nerve neuritis associated with right inguinal hernia repair have been met from December 3, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, 4.123, 4.124a, Diagnostic Code 8630. 2. The criteria for entitlement to an increased disability rating for obturator nerve neuritis associated with right inguinal hernia repair to 10 percent, but no higher, have been met from August 16, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, 4.123. 4.124a, Diagnostic Code 8628. 3. The criteria for entitlement to an increased disability rating for severe incomplete paralysis of the genito-femoral nerve associated with right inguinal hernia repair to 10 percent, but no higher, have been met from December 3, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, 4.123, 4.124a, Diagnostic Code 8699-8530. 4. The criteria for entitlement to an increased disability rating for right inguinal hernia status post repair to 30 percent, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7338. 5. The criteria for entitlement to an increased disability rating in excess of 10 percent for scars associated with right inguinal hernia, to include spinal stimulator placement, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code 7802, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1994 to August 2011. As background, the Veteran initially applied for entitlement to service connection as he was separating from active service. In an August 2011 rating decision, the RO granted entitlement to service connection with an effective date of August 10, 2011 for "right inguinal hernia status post hernia repair and nerve release x 2 (PEB referred as chronic pain syndrome also claimed as right inguinal pain)" with an evaluation of noncompensable to include scars for various locations under one noncompensable rating. The Veteran did not appeal. The Veteran submitted a claim for increased disability rating for right inguinal hernia status post repair on December 3, 2012. In a September 2013 rating decision, the RO continued the noncompensable disability rating and categorized the issue as "right inguinal hernia status post hernia repair with genito-femoral nerve neuropathy and surgical scar (previously right inguinal hernia status post hernia repair and nerve release x 2 DC 7339)." The Veteran submitted a notice of disagreement and the RO issued a statement of the case in May 2015 and a new rating decision in May 2015 increasing the rating to 10 percent from December 3, 2012 for "right inguinal hernia status post hernia repair with genito-femoral nerve neuropathy and surgical scar." The Veteran submitted a VA Form 9 in July 2015 to appeal the finding, but in a separate matter, the RO found that the VA Form 9 was not timely. The Veteran subsequently submitted a new claim for increased disability rating for right inguinal hernia status post repair on August 16, 2015. In an October 2015 rating decision, the RO continued the 10 percent disability rating for "right inguinal hernia status post hernia repair with obturator nerve neuropathy and surgical scar (claimed as chronic pain) (previously right inguinal hernia SP hernia repair and nerve release x 2 (previously genito-femoral nerve)." The Veteran perfected a timely appeal. In an October 2019 decision, the Board denied the Veteran's appeal regarding the timeliness of the July 2015 VA Form 9 and remanded the issue regarding increased evaluation for the right hernia status post repair disability. In an October 2020 rating decision resulting from quality review actions, the RO determined it had committed clear and unmistakable errors in the rating decisions of the right inguinal hernia by not separating out the nerve conditions and scars from the right inguinal hernia status post repair disability alone. Accordingly, it granted separate ratings at 10 percent for right inguinal hernia scar from December 3, 2012; noncompensable rating for incomplete paralysis of the obturator nerve being mild or moderate from August 16, 2015; noncompensable rating for right inguinal hernia status post repair prior to January 17, 2020 and 10 percent from that date; and noncompensable rating for genitofemoral nerve neuropathy from December 3, 2012. Accordingly, as the RO issued a new rating decision related to the ongoing appeal of the right inguinal hernia status post appeal, the related nerve disabilities and scars, the Board will consider this rating decision for determination of effective dates in its present decision. In January 2021, the Board remanded this case again to obtain Social Security Administration records. Those records were obtained by the RO and uploaded to the Veteran's file. As to the post-remand development, the Board finds that the RO substantially complied with the remand directive. See 38 U.S.C. § 5103; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Increased Rating 1. Entitlement to a separate disability rating for ilio-inguinal nerve neuritis associated with right inguinal hernia repair 2. Entitlement to an increased disability rating for obturator nerve neuritis associated with right inguinal hernia repair 3. Entitlement to an increased disability rating for evaluation of the genito-femoral nerve associated with right inguinal hernia repair The Veteran contends that a rating in excess of 10 percent is warranted for the right inguinal hernia repair and related disabilities, previously considered as one disability. After a thorough review of the evidence, the Board finds that a separate rating for ilio-inguinal nerve neuritis at 10 percent from December 3, 2012 is warranted; a 10 percent disability rating for obturator nerve neuritis from August 16, 2015 is warranted; and a 10 percent disability rating for genitofemoral nerve, severe incomplete paralysis from December 3, 2012 is warranted. 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As explained above, the Veteran's right inguinal hernia status post repair and related nerve conditions and scars were originally rated as one entity and later separated out under a CUE finding in October 2020. The Veteran's service treatment records and personnel records show that he was medically discharged from active service in part due to pain related to the right inguinal hernia status post repair. The Veteran had right inguinal hernia-related surgeries in 1994, 2001, and 2002, to include placement of mesh. The Medical Board suggested a 20 percent disability rating. However, upon separation and examination, VA determined that there was not a presently compensable disability and awarded entitlement to service connection for the right inguinal hernia status post repair with scars and nerve impairment at a noncompensable rating from August 10, 2011. In reviewing the Medical Board records, the documents note involvement of both the ilio-inguinal and genitofemoral nerves in the right inguinal hernia status post repair condition. The first rating decision noted right inguinal hernia with nerve involved X2, without specifying which nerves in the description. In the later decisions, the genitofemoral nerve was specified, and subsequent to the August 2015 claim, the obturator nerve was used in the description. When the October 2020 rating decision separated out the nerves, it included the obturator nerve and the genitofemoral nerve. The Board finds that the service medical records note involvement of the ilio-inguinal nerve in the Veteran's right inguinal hernia status post repair and of the two nerves noted in the initial description, one should have been the ilio-inguinal nerve, and the other the genitofemoral nerve. As the October 2020 rating decision found CUE for not separating out the nerve conditions, the Board finds that an additional separate rating for entitlement to service connection for ilio-inguinal nerve neuritis should be awarded from December 3, 2012. As for the evaluation level for the ilio-inguinal nerve neuritis, the Board finds that the maximum level of 10 percent is warranted. The Veteran has suffered since active service with nerve pain that is noted to be etiologically related to both the ilio-inguinal nerve and genitofemoral nerve as of separation from active service. The Veteran's post-service medical records show continuous complaints of pain and attempts at treatment for nerve pain to include various prescription medications, TENS units, acupuncture, steroid and trigger point injections, as well as implantation of a spinal cord stimulator in 2017. At the September 2013 VA examination for nerve conditions, the examiner noted no response regarding the obturator nerve, but noted moderate incomplete paralysis for the genitofemoral nerve, which was checked as the ilio-inguinal nerve solely for purposes of the pre-populated choices on the VA examination. The comments by the examiner note that the pain could be moderate to severe and the nerve area was tender and painful upon palpation. CAPRI records show treatment for the genitofemoral nerve pain in August 2014. The Veteran has continued to complain of right groin pain related to the hernia and nerve conditions since active service. At a May 2015 VA examination for nerve conditions, the examiner marked the obturator nerve and genitofemoral nerve (again under pre-populated boxes as the ilio-inguinal nerve) as normal. However, at the September 2015 VA examination for nerve conditions, the examiner noted the August 2015 EMG study showed obturator nerve involvement as mild incomplete paralysis and marked the ilio-inguinal nerve as normal. In the commentary, the examiner opined that the obturator nerve was the most likely cause of the Veteran's symptoms as the diagnostic evidence did not show ilio-inguinal nerve entrapment. At the July 2020 VA examination for nerve conditions, the examiner noted the obturator nerve neuropathy second to the right inguinal hernia as mild incomplete paralysis and the genitofemoral nerve (again marked as the ilio-inguinal nerve because the genitofemoral nerve is not an option on the form) as severe incomplete paralysis. The examiner commented that the ilio-inguinal nerve is closest available nerve on the form to the genitofemoral nerve. The Veteran's symptoms were marked as constant severe pain, mild intermittent pain, mild paresthesias, and moderate numbness, in the right lower extremity pertaining to nerve conditions. Disabilities of the ilio-inguinal nerve are rated under 38 C.F.R. § § 4.124a, which includes DCs 8530 for paralysis, DC 8630 for neuritis, and DC 8730 for neuralgia. Under DC 8530, 8630, and 8730, mild or moderate neuralgia, neuritis, or paralysis of the ilio-inguinal nerve warrants a noncompensable disability rating. See 38 C.F.R. § 4.124a. A maximum schedular 10 percent disability rating is warranted for severe to complete neuralgia, neuritis, or paralysis of the ilio-inguinal nerve. Id. Diagnostic Code 8528 provides ratings for paralysis, neuritis, and neuralgia of the obturator nerve. Neuritis and neuralgia are rated as incomplete paralysis. A maximum 10 percent rating is warranted for severe incomplete paralysis or paralysis of the respective nerve. Mild or moderate impairment of the nerve warrants noncompensable rating. 38 C.F.R. § 4.124a, Diagnostic Code 8528. As for genitofemoral nerve involvement, there is no listed criteria for its evaluation, and thus it is rated as analogous to neuritis or neuralgia of the ilio-inguinal nerve under Diagnostic Codes 8630 and 8730 or as analogous to neuritis or neuralgia of the internal saphenous nerve under Diagnostic Codes 8627 and 8727. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, that is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at time excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for words such as "moderately severe." The Board finds that entitlement to a separate rating for entitlement to service connection for ilio-inguinal nerve neuritis at the maximum rating of 10 percent is warranted from December 3, 2012; entitlement to the maximum rating of 10 percent for obturator nerve neuritis is warranted from August 16, 2015; and entitlement to the maximum rating of 10 percent for genitofemoral nerve severe incomplete paralysis is warranted from December 3, 2012. 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to an increased rating for right inguinal hernia status post repair The Veteran contends that the right inguinal hernia status post repair is worse than the currently assigned noncompensable disability rating prior to January 17, 2020 and 10 percent from that date. After a thorough review of the evidence, the Board finds that a 30 percent disability rating, but no higher for right inguinal hernia status post repair is warranted. The Veteran is currently rated at a noncompensable level for right inguinal hernia status post repair prior to January 17, 2020 and 10 percent from that date under Diagnostic Code 7338. Under DC 7338 for hernia, inguinal: large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable has 60 percent rating; small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible has 30 percent rating; postoperative recurrent, readily reducible and well supported by truss or belt has 10 percent rating; not operated, but remediable, and small, reducible, or without true hernia protrusion have noncompensable ratings. The guidelines specify to add 10 percent 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. At the September 2013 VA hernia examination, the examiner noted prior diagnosis of inguinal hernia with surgery in 2001 and 2011. The May 2015 VA hernia examination noted no hernia present on the right. The September 2015 VA examination noted no true hernia protrusion on the right side but also noted a small hernia confirmed by CT scan. The examiner also recorded the history of multiple surgical interventions for the right inguinal hernia. At the January 2020 VA hernia examination, the examiner noted a diagnosis of right inguinal hernia status post repair with obturator nerve neuropathy and surgical scar with reducible small fatty right inguinal hernia noted on January 2020 ultrasound. The evidence supports that the Veteran's right inguinal hernia status post repair is more closely approximated by a 30 percent disability rating throughout the appeal period, resolving any reasonable doubt in favor of the Veteran. The Veteran's right inguinal hernia has been labelled as small, has recurred, and is in postoperative status. The evidence does not support that the Veteran's hernia has been large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible during the period on appeal, which are the criteria for a higher 60 percent disability rating. The Board acknowledges and finds credible the Veteran's statements regarding continuous and severe pain related to the right hernia status post repair but finds that diagnosing the hernia as large or as meeting the other criteria of the next highest 60 percent rating criteria level is not within the Veteran's competency as it involves a need for medical knowledge and training beyond the realm of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that a 30 percent disability rating for the Veteran's right inguinal hernia status post appeal is warranted. 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to an increased disability rating in excess of 10 percent for scars associated with right inguinal hernia, to include spinal stimulator placement The Veteran contends that the scars related to the right inguinal hernia status post repair are worse than currently contemplated by the assigned 10 percent disability rating. After thorough review of the evidence, the Board finds that a disability rating in excess of 10 percent for scars related to right inguinal hernia status post repair is not warranted. The Veteran is currently rated for a right inguinal painful scar related to right inguinal hernia status post repair under Diagnostic Code 7804. Diagnostic Code 7800 pertains to scars of the head, face, or neck, which is not the location of the Veteran's service-connected scars. Accordingly, DC 7800 is not for application. Diagnostic Code 7801 pertains to burn scars or scars associated with underlying soft tissue damage. The Veteran's scarring is not related to underlying soft tissue damage per the VA examinations. Accordingly, DC 7801 is not for application. Diagnostic Code 7802 pertains to scars or areas of scars that total more than 929 square centimeters. The VA examinations do not support that the Veteran's scarring is in excess of 929 square centimeters. Accordingly, DC 7802 is not for application. Other scars and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated under Diagnostic Code 7805. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. In this case, the Veteran's scars do not result in disabling effects. There is no functional impairment as a result of the scars per VA examinations. The September 2013 VA examiner noted the Veteran had a benign 6cm long scar in the right groin area, which was non-tender, not painful, not unstable, and not more than 6 square inches. The May 2015 VA examiner noted that the Veteran had right inguinal hernia scar that was "barely visible." The scar was reported as painful but not unstable and with no underlying tissue damage at 8 centimeters linear and superficial. In February 2017, the medical records show that the Veteran had a spinal stimulator implanted to alleviate pain related to the right inguinal hernia status post repair. At the July 2020 VA examination, the examiner noted a scar on the right groin from prior hernia repair and a scar on the buttock area from spinal stimulator implantation. The right groin scar was 8 cm by 0.3 cm and the right buttock scar was 3 cm by 0.8 cm. There was no functional impact due to the scars. The scars were not reported as painful, unstable, or related to underlying soft tissue damage. In this case, per the VA examinations, the Veteran's scars are not unstable. The Veteran has intermittently reported that the groin scar is painful. The VA examiners have not noted that the scars are associated with underlying soft tissue damage. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Although the currently assigned disability rating describes one of the Veteran's scars as painful, neither is reported as unstable, and accordingly, whether one or two of the Veteran's scars are painful, the relevant appropriate disability rating remains at 10 percent. Accordingly, the evidence weighs against a rating in excess of 10 percent for the Veteran's painful right groin scar associated with right inguinal hernia status post repair under the currently assigned Diagnostic Code 7804 or against a compensable rating for the buttocks scar associated with spinal stimulator implantation assigned to Diagnostic Code 7802. 38 C.F.R. § 4.118, DCs 7802, 7804. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.