Citation Nr: 22017904 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-39 126 DATE: March 26, 2022 ORDER Entitlement to a 10 percent rating, but not higher, for a right hernia, residual scar effective October 5, 2018, is granted. Entitlement to a 10 percent rating for multiple, noncompensable service-connected disabilities is denied. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to a compensable rating for residuals of a right hernia is remanded. Entitlement to an earlier effective date prior to April 3, 2016, for service connection residual scar, right hernia is remanded. FINDINGS OF FACT 1. From October 5, 2018, the Veteran's postoperative hernia scar has been painful but not unstable. 2. There is no basis for the assignment of a 10 percent evaluation based upon multiple, noncompensable service-connected disabilities for that time period. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 10 percent disabling for right hernia residual scar (7805, 7804), effective October 5, 2018, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic codes 7338, 7804. 2. The criteria for entitlement to a 10 percent rating for multiple, noncompensable service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.324 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the U.S. Army National Guard from January 1967 to May 1967 and on active duty for 10 days from July 1967 to August 1967. These matters come before the Board of Veterans' Appeals (Board) from October 2016 and June 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Whenever a Veteran has two or more separate permanent service-connected disabilities that are of such character as to clearly interfere with normal employability but are not found to be of compensable degree under the VA's Rating Schedule, the rating agency is authorized to apply a 10 percent evaluation, but not in combination with any other rating. 38 C.F.R. § 3.324. Hernia Evidence Service treatment records show that the Veteran sustained a right inguinal hernia while on National Guard active duty for training in May 1967. The Veteran had surgery on a right hernia in November 1967 and then a left hernia surgery in November 1997. The RO received and intent to file a claim on April 3, 2016, and the Veteran's claim for service connection for residuals of the hernia in May 2016. In October 2016, the Veteran was afforded a VA hernia examination. The examiner noted that the Veteran had surgery on a right hernia in November 1967 and then a left hernia surgery in November 1967. At the time of the examination no hernias were present. The examiner noted that the Veteran did have a scar but that it was not painful or unstable. The right scar was measured at 5.5 centimeters by 0.3 centimeters and the left scar was 7 centimeters by 0.2 centimeters. The Veteran did not have a hernia condition that impacted his ability to work. In March 2019, the Veteran submitted a private examination report dated October 5, 2018. The examiner diagnosed painful scar, status post inguinal surgical repair. The examiner stated that the Veteran's problems were caused by and/ or aggravated by his military service. Hernia Scar-7804 In the June 2018 rating decision, the RO granted service connection for the right hernia residual scar with a noncompensable rating. This disability is evaluated according to 38 C.F.R.§ 4.118, Diagnostic Code 7804 (7805), which is applicable for a painful and unstable scar. Diagnostic Code 7801 applies to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one that is associated with underlying soft tissue damage. Id. at Note 1. Under DC 7801, a scar not of the head, face, or neck that is deep and nonlinear is rated as follows: a 10 percent rating is assigned for an area of at least 6 square inches (36 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating is assigned for an area of at least 12 square inches but less than 72 square inches (465 sq. cm.); a 30 percent rating is assigned for an area of at least 72 square inches but less than 144 square inches (929 sq. cm.); and a maximum 40 percent rating is assigned for an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7801. A deep scar is one associated with underlying soft tissue damage. Id. at Note (1). Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. Id. at Note 1. Under DC 7802, a maximum 10 percent rating is assigned for a superficial and nonlinear scar not of the head, face, or neck if it measures 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (1). Under Diagnostic Code 7804, one or two scars that are unstable or painful are assigned a 10 percent evaluation. A 20 percent rating is assigned for three or four scars that are painful or unstable. A 30 percent rating is assigned for five or more scars that are painful or unstable. Note (2) under diagnostic code 7804 provides that a scar or scars that are both painful and unstable on examination may be assigned an additional 10 percent rating. Diagnostic Code 7805 provides that other scars (including linear scars), and other effects of scars, require the rating of any disabling effects not considered in a rating provided under Diagnostic Codes 7800 to 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. The 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118 are: (1) Scar is 5 or more inches (13 or more centimeters (cm.)) in length; (2) Scar is at least one-quarter inch (0.6 cm.) wide at the widest part; (3) Surface contour of scar is elevated or depressed on palpation; (4) Scar is adherent to underlying tissue; (5) Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); (8) Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Veteran's scar is rated under diagnostic code Diagnostic Code 7805. The Veteran contends that the noncompensable rating for his residual scar, right inguinal hernia under diagnostic code Diagnostic Code 7805 does not contemplate the severity of his disability. As mentioned above, the October 2016 examiner noted that the Veteran did have a scar that was not painful or unstable or had a total area equal to or greater than 39 centimeters or located on the head, face, or neck. The right scar was measured at 5.5 centimeters by 0.3 centimeters and the left scar was 7 centimeters by 0.2 centimeters. However, a March 2019 private examiner diagnosed the Veteran with a painful scar. As discussed above, in order to warrant a 10 percent disability rating, the evidence needs to reflect that the Veteran's right hernia residual scar (one or two scars) are unstable or painful are assigned a 10 percent. Therefore, the Board finds the Veteran's residual right hernia scar is increased from noncompensable to a 10 percent rating since the Veteran's scar was painful. Although an August 1, 2018, substantive appeal cited a painful scar, the document was signed only by the representative and does not represent competent lay or medical evidence of a worsening status. The increased rating is effective October 5, 2018, the earliest competent evidence that factually ascertained an increase in disability. Multiple, Noncompensable Section 3.324 provides that whenever a veteran is suffering with two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. The Veteran is service connected, and current assigned noncompensable ratings, for hernia with scar and a noncompensable rating for right hernia residual scar prior to October 5, 2018. As noted above, the October 2019 examination indicated that the scars did not impact the Veteran's employment. Based upon a review of the record, the Board finds the Veteran's medical records for his service-connected disabilities do not show that his service-connected disabilities clearly interfere with normal employability. Accordingly, the Board finds against entitlement to a 10 percent rating under 38 C.F.R. § 3.324. REASONS FOR REMAND Back condition The Veteran contends that his back condition was incurred in, caused by, or aggravated by service. The Veteran's service treatment records (STRs) are associated with the claims file. The Veteran did not seek treatment for back injury while in service. In a July 1965 entrance medical history questionnaire, the Veteran reported that he was in good health. However, the Veteran indicated that he had or had in the past had swollen or painful joints and arthritis but referred to a knee disorder that had required surgery. He denied ever wearing a brace or back support, and the examiner noted no spinal abnormalities. In an April 1967 discharge medical separation examination, the clinical evaluation revealed normal upper extremities spine, other musculoskeletal abnormalities. The Veteran also denied ever having recurrent back pain and denied any injury other than the hernia. In an October 1994 private treatment record, a clinician noted the Veteran's report of chronic back pain for the previous three months. The attending clinician diagnosed cauda equina syndrome with herniated disc at L-2-3 and the Veteran underwent a bilateral laminectomy at that level. There were no notations regarding the cause including any report of trauma. See May 2016 Medical Treatment-Non-Government Facility, p.1. In October 2003, the Veteran underwent a magnetic resonance image (MRI) study and the physician found that the Veteran had lumbar spinal stenosis. The physician diagnosed moderate predominately degenerative central canal lateral recess stenosis at L3-4 and to a less degree at L4-5, where there was also a small left paramedian disk herniation. See May 2016 Medical Treatment-Non-Government Facility, p.7. In a December 2010 VA treatment record, a clinician diagnosed low back pain. The Veteran reported that after low back surgery he had left lower extremity and left extremity muscle atrophy. The Veteran did not discuss any injury in service or the effects of a hernia. The Veteran reported pain and difficulty with prolonged standing, sitting, walking and recreational activities. The Veteran and his wife indicated that they had been unable to participate in their normal active lifestyle but that he gradually was eventually able to return to racquetball. See May 2016 Medical Treatment-Non-Government Facility, p.4. In a May 2016 statement in support of claim, the Veteran stated in 1967 while in-service he fell off a pole during a pole climbing training exercise and his back problems were related to the fall. The Veteran stated that his back condition had a big impact on his employment over the years, since he could not stand for extended periods of time but did not indicate that he was unable to maintain or obtain employment. The Veteran also indicated that in October 1994 he had surgery on his back for reoccurring pain and discomfort. See May 2016 VA 21-4138 Statement In Support of Claim. In October 2016, the Veteran was afforded a back VA examination. The examiner noted the earlier diagnosis of cauda equina syndrome with herniated disc L2-3, with excision of extruded herniated nucleus pulpous L2-3 and lumbar stenosis with radiculitis. The Veteran reported after he had low back surgery in 1994, he had lower left extremity numbness and muscle atrophy which he reported pain and difficulty with standing, sitting, walking and recreational activities. The examiner found the condition claimed was less likely than not incurred in or caused by his fall in-service injury, event, or illness. The rationale was based on the Veteran's medical records at the time of the Veteran's cauda equina syndrome surgery he had a documented a 3-month history of back pain. The examiner also stated that the Veteran's separation examination was negative for complaints or condition related to his lower back. Also, the Veteran was not diagnosed with lumbar stenosis with radiculitis until 2010, 43 years after he left active duty. In October 2018, the Veteran submitted the results of a private back examination, which was posted in March 2019. The examiner reviewed the claims file and provided an opinion; however, it lacked a detailed rationale. The private examiner noted that the October 2016 examiner indicated that the Veteran's fall in-service did not cause his back condition. However, the private examiner noted that the October 2016 VA examiner failed to discuss aggravation or a secondary relationship to his hernia. The private examiner found that the Veteran's back condition was aggravated beyond its normal progression by his service-connected hernia. The examiner stated that the Veteran walked with appreciable gait alteration. The examiner stated that while his back caused some of the alteration, it was caused by his hernia residuals. The examiner stated that the altered gait caused additional strain on his back and nerves. The examiner indicated that it was common for people with altered gait to develop back problems. In an August 2018 form 9, the Veteran reported he injured his back in-service. Also, it was noted that his gait had been altered by his hernia residuals which could have been the reason for his back condition or aggravated it. He contended that VA failed to consider secondary service connection. See August 2018 Form 9. In October 2019 the Veteran was afforded another back examination. The examiner noted a diagnosis of degenerative disc disease; degenerative spondylolisthesis, radiculopathy, and cauda equina syndrome in October 1994. The Veteran described symptoms of severe pain, discomfort, limitation of motion and a hernia aggravation due to altered gait. The examiner stated the Veteran would require frequent unscheduled breaks for a job that required standing and sitting. However, the examiner failed to provide a medical opinion. As there is evidence of current disability, lay evidence of an injury in service, and a suggestion that the current disability was caused by service or aggravated by a current service-connected disability, but there is not an adequate competent opinion on the matter, a new examination is necessary to decide the claim. Hernia The Veteran is currently rated at a 0 percent (noncompensable) disability for his right inguina hernia under 38 C.F.R. § 4.114, Diagnostic Code 7388. He contends that his rating should be increased to 10 percent. The Veteran filed his claim for an increased rating in April 2019. Service treatment records show that the Veteran sustained a right inguinal hernia while on National Guard active duty in May 1967. The Veteran had surgery on a right hernia in November 1967 and then a left hernia surgery in November 1997. The RO received and intent to file a claim on April 3, 2016, and the Veteran's claim for service connection for residuals of the hernia in May 2016. In October 2016, the Veteran was afforded a VA hernia examination. The examiner noted that the Veteran had surgery on a right hernia in November 1967 and then a left hernia surgery in November 1997. At the time of the examination no hernias were present. The examiner noted that the Veteran did have a scar but that it was not painful or unstable. In October 2018, a private examination was submitted. The examiner stated that the Veteran used aspirin and a support belt and underwear as continuous medication. However, the examiner noted that the Veteran's condition was not well supported by briefs/ belts (always not well supported by truss/belt). In addition, the examiner stated that the Veteran had neuropathic pain causing weakness, numbness, and pain from femoral nerve damage. The examiner also noted that the Veteran had an altered gait. The Veteran also indicated the condition impacted his ability to work, because he could not lift; move quickly; limited stamina with further injury and chronic neuropathic pain. The examination suggests there is a worsening in severity of the Veteran's hernia condition. Therefore, a new examination must be obtained to determine the current severity of his hernia condition. Earlier Effective Date for Hernia Scar The Veteran contends that he is entitled to an earlier effective date earlier than April 3, 2016 for service connection for his residual scar, right hernia. The Veteran submitted an informal claim seeking compensation for residuals for a right hernia scar on April 3, 2016. See April 2016 Notification Letter. Prior to April 2016, there is no pending formal or informal claim seeking entitlement to service connection for residual scar, right hernia. A June 2018 rating decision granted service connection for residual scar; right hernia rated as noncompensable effective April 3, 2016. The Veteran submitted a notice of disagreement in April 2019 seeking an earlier effective date for the grant of service connection for right scar, right hernia. He did not provide a contended earlier date or cite evidence to support an earlier date. However, the RO has not yet issued a statement of the case (SOC) regarding this issue. When a claimant files a timely NOD and there is no statement of the case (SOC) issued, the Board should remand, rather than refer, the issue to the RO for the issuance of a SOC. In this case, the issue raised above has a timely NOD filed, but no SOC has been issued on the issue. The issue should be remanded for the appropriate SOC. The failure to issue an SOC is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). As such a statement of the case has not yet been issued as to the Veteran's claim for entitlement to an earlier effective date for a hernia. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Request all records of VA outpatient treatment since October 2016 and associate any records received with the claims file. 2. Schedule the Veteran for a back condition examination. Request that the examiner review the claims file including the Veteran's service treatment records, post-service treatment records, and reports of an in-service back condition. Request that the examiner provide an opinion as to the nature and etiology of his back condition disability including whether it was caused by the reported fall. If the Veteran's residuals of his hernia surgery cause altered gait or nerve damage independent of the back disability, did the hernia residuals cause or aggravate the back disability? The examiner should address the following: a. Whether the Veteran's low back condition is at least as likely as not (50 percent probability or greater) manifested in service or was caused by any in-service injury or disease. b. Whether the Veteran's back condition was proximately due to or aggravated by the Veteran's service-connected hernia residuals. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hernia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In addition, attention is invited to the October 2018 private examination and letter from the private physician. Veteran's lay statements noting regular use of medication, and symptoms of altered gait and nerve damage. The examiner should fully address the entirety of the Veteran's symptomology attributed to his hernia and whether the symptoms of altered gait and nerve damage are attributed to the Veteran's back condition or hernia. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. 4. Send the Veteran and his representative a statement of the case that addresses the issue of entitled to an earlier effective date for service connection for his residual scar, right hernia prior to April 3, 2016. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.