Citation Nr: 22017757 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-48 430 DATE: March 26, 2022 ORDER A compensable disability rating for status post right inguinal hernia repair is denied. Service connection for bilateral Morton's neuroma is denied. FINDINGS OF FACT 1. The Veteran's status post right inguinal hernia repair is currently manifested by pain in the right groin area with no inguinal hernia present on physical examination. 2. The Veteran has a current diagnosis of bilateral Morton's neuroma, that manifested many years after service, and is not shown to be causally or etiologically related to any disease, injury, or incident in service, or caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for status post right inguinal hernia repair have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7338. 2. The criteria for service connection for bilateral Morton's neuroma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1979 to July 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2012 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Specifically, the December 2012 rating decision, in pertinent part, denied service connection for bilateral Morton's neuroma. The June 2015 rating decision continued noncompensable disability ratings for status post right inguinal hernia repair as well as scar status post right hernia repair. The Veteran testified at a Board virtual hearing in May 2021 before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. This case was previously before the Board in August 2021 at which time the above issues were remanded for additional development. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Once a disability is service connected, a disability evaluation is assigned. 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. §§ 3.321 (a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. A compensable disability rating for status post right inguinal hernia repair is denied. The Veteran contends that his service-connected status post right inguinal hernia repair is more disabling than currently evaluated. By way of history, the Veteran underwent right inguinal hernia repair during his military service in November 1982. He submitted an initial claim for service connection for residuals of his in-service right inguinal hernia repair in August 2001 and, by rating decision dated in February 2002, the RO granted service connection for status post right inguinal hernia repair, assigning a noncompensable disability rating effective August 1, 2001. In October 2013, the Veteran submitted a claim for an increased rating for status post right inguinal hernia repair, noting that he had experienced a hernia recurrence in August 2013. The Veteran later submitted private treatment records showing treatment for an umbilical hernia in August 2013 and a left inguinal hernia in March 2014. In connection with this claim, he was afforded a VA hernia examination in May 2015. Significantly, this examination report shows a history of right inguinal hernia in 1983 and left inguinal hernia in 2014 but is negative for any current inguinal hernia and/or residuals. During the May 2021 Board hearing, the Veteran testified that he experienced internal pain of the right inguinal hernia surgical site. It was a throbbing pain and became more noticeable when driving or performing physical labor. The Veteran also testified that, after complaining of this pain to his private physician, he underwent MRI (magnetic resonance imaging) of the right side and was noted to have significant scar tissue of the right abdomen. In August 2021, the Board remanded the claim for a new VA hernia examination, to include a medical opinion regarding whether the Veteran's August 2013 umbilical hernia and March 2014 left inguinal hernia represent recurrences of his in-service right inguinal hernia. Pursuant to the August 2021 Board remand, the Veteran was afforded a VA hernia examination in November 2021. Significantly, this examination report shows diagnoses of inguinal hernia (1982) as well as ventral hernia (2015). However, it was noted that no current hernia, either inguinal or ventral, could be detected and that there were no pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's prior hernias, with the exception of a scar which is separately rated. Furthermore, the November 2021 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's August 2013 umbilical hernia and March 2014 left inguinal hernia represent recurrences of his in-service right inguinal hernia. As rationale for this opinion, the examiner noted that the Veteran served on active duty as a boatswain's mate from June1987 to July 2001 and experienced a right sided inguinal herniorraphy during active duty. Subsequently, the Veteran underwent umbilical hernia repair in August 2013 and left inguinal hernia repair in March 2014. Notably, this was 12 and 13 years after separation from active duty in 2001 and, in the examiner's opinion, does not demonstrate chronicity and continuity. Furthermore, pathophysiologically, umbilical hernia and left inguinal hernia are separate and distinct from right inguinal hernia repair which confounds and diminishes a causal relationship between in-service right inguinal hernia repair and post- military hernia repairs. Moreover, recurrence only occurs at the same surgical site and not at other surgical sites. The Veteran's service-connected right inguinal hernia is currently rated under 38 C.F.R. § 4.114, DC 7338. Pursuant to DC 7338, a non compensable rating is warranted where the inguinal hernia is small, reducible, or without true hernia protrusion or 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 for a small hernia which is postoperative and recurrent or unoperated irremediable, and 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. Note: Add 10 percent for bilateral involvement, providing the second hernia is compensable. Evidence relevant to the current level of severity of the Veteran's right inguinal hernia repair includes May 2015 and November 2021 VA hernia examinations. Significantly, each of these examination reports is negative for any current inguinal hernia and/or residuals. Also of record are VA and private treatment reports dated through November 2021. While these records show a history of right inguinal hernia repair, they are negative for any current inguinal hernia and/or residuals. Considering such evidence in light of the criteria noted above, the Board finds the Veteran's residuals of right inguinal hernia repair do not meet the criteria for a compensable rating. As noted above, a 10 percent evaluation requires a postoperative recurrent hernia which is readily reducible and well-supported by a truss or belt. There is a complete absence of any clinical evidence on file which shows that the right inguinal hernia has been recurrent at any time since the November 1982 operation. While the Veteran did experience umbilical hernia repair in August 2013 and left inguinal hernia repair in March 2014, the November 2021 VA examiner opined that such are unrelated to his in-service right inguinal hernia. Furthermore, while the Veteran complained of pain in the right groin area, the rating criteria for inguinal hernia do not provide for a compensable evaluation based upon pain or discomfort (separate from any painful scars). As such, the criteria for a compensable disability rating are not met. The Board also finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there are specific diagnostic codes to evaluate inguinal hernias, consideration of other diagnostic codes for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). 2. Service connection for bilateral Morton's neuroma is denied. The Veteran contends that he experiences bilateral Morton's neuroma due to his military service. Specifically, he contends that, during his 22 years of active service, he did a lot of walking on steel deck ships while wearing uncomfortable boots and that his current bilateral Morton's neuroma is the result of this. Service treatment records are negative for Morton's neuroma, but do show treatment for pes planus, plantar fasciitis, and a fracture of the right foot in January 1990. Significantly, the Veteran is currently service connected for bilateral plantar fasciitis. Post-service treatment records show complaints regarding the feet as early as August 2012. Specifically, an August 2012 private treatment record shows that the Veteran was experiencing pain in both of his feet and the examiner noted a diagnosis of neuroma. The Veteran submitted a claim for service connection for a bilateral foot disorder in November 2010 and, in August 2012 correspondence, noted that he had been diagnosed with Morton's neuroma. In connection with this claim, he was afforded a VA foot examination in November 2012 which shows diagnoses of fracture of the right foot (1990) as well as plantar fasciitis (1979). In August 2021, the Board remanded the claim for a new VA foot examination, noting that the November 2012 VA foot examiner failed to consider the August 2012 diagnosis of neuroma. Pursuant to the August 2021 Board remand, the Veteran was afforded another VA foot examination in November 2021. Significantly, this examination reports shows diagnoses of pes planus, plantar fasciitis, and Morton's neuroma. The examiner then opined that the Veteran's Morton's neuroma was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale for this opinion, the examiner noted that the Veteran was found to have pes planus upon enlistment examination and that, while the Veteran served as a boatswain's mate for over ten years and was subject to microtrauma that comes over time from training and duty, the Veteran's separation examination shows normal feet and there is no evidence to indicate that Veteran had any continuous treatment on an ongoing basis from active duty to the present. There is also no evidence that Veteran sought medical attention for a condition within one year after separation from active duty. The Veteran was not diagnosed with neuroma until 2012, approximately 12 years after separation from active duty, which does not demonstrate chronicity and continuity. The November 2021 VA examiner also opined that it was less likely than not (less than 50 percent probability) that the Veteran's bilateral Morton's neuroma is secondary to and/or aggravated beyond natural progression by his service-connected plantar fasciitis. As rationale for this opinion, the examiner noted that plantar fasciitis is inflammation of the plantar fascia, which is a band of tissue that runs across the bottom of your foot and connects your heel bone to your toes. Morton's neuroma involves a thickening of the tissue around one of the nerves leading to your toes. Pathophysiologically, these are separate and distinct conditions without any direct pathophysiologic pathway. Also of record are VA and private treatment reports dated through November 2021. While these records show a history of bilateral Morton's neuroma, they are negative for any indication of the etiology of this disability. Upon review of the above evidence, the Board finds that service connection for bilateral Morton's neuroma is not warranted. Initially, the Board notes that the Veteran has a current of bilateral Morton's neuroma. However, a causal relationship cannot be presumed and is not at least as likely as not. With regard to presumptive service connection, the Board notes that Morton's neuroma is not a chronic condition under 38 C.F.R. § 3.309(a). As such, presumptive service connection on the basis of continuity of symptomatology is not warranted for the Veteran's Morton's neuroma. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. Significantly, as above, while the Veteran's service treatment records show pes planus, there is no indication of Morton's neuroma and post-service treatment records are negative for Morton's neuroma until 2012. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, the probative evidence in the record does not link the Veteran's current Morton's neuroma to an incident of the Veteran's active military service. Significantly, while the Veteran contends that his current Morton's neuroma is related to his military service, he is not competent to render an opinion on matters that are inherently medical in nature. The November 2021 VA examiner found that the Veteran's Morton's neuroma is not related to his military service as there were no findings of Morton's neuroma in service in service or for several years after service. As the November 2021 VA examiner offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to the opinion. See Nieves-Rodriguez v, 22 Vet. App. at 295; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, the claim is denied on a secondary/aggravation basis. While the Veteran contends that his Morton's neuroma may be related to his service-connected plantar fasciitis, he has not submitted any evidence supporting this theory. Significantly, the November 2021 VA examiner opined that the Veteran's Morton's neuroma is not related to his service-connected plantar fasciitis on either a secondary or aggravation basis as there is no anatomical correlation between the Morton's neuroma and the plantar fasciitis. As above, since the November 2021 VA examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to the opinion. See Nieves-Rodriguez v, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. While the Veteran has alleged that his Morton's neuroma is related to his military service, the Board finds that the question regarding the potential relationship between this disorder and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of these disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. (CONTINUED ON THE NEXT PAGE) Accordingly, for the reasons stated above, the Board finds that the persuasive evidence is against the claim for service connection for bilateral Morton's neuroma. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.