Citation Nr: 25005124 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 16-36 162 DATE: April 16, 2025 ORDER Entitlement to a compensable rating for an inguinal hernia is denied. Entitlement to service connection for post-herniorrhaphy neuralgia, as secondary to inguinal hernia, is granted. FINDINGS OF FACT 1. The Veteran's inguinal hernia is manifested by persistent pain with running, intercourse, and strenuous activities; however, the medical evidence of record does not show the hernia is recurrent or irreparable. 2. Resolving reasonable doubt in favor of the Veteran, his post-herniorrhaphy neuralgia is proximately due to or caused by his inguinal hernia. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7338. 2. The criteria for entitlement to service connection for post-herniorrhaphy neuralgia, as secondary to inguinal hernia, have been 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 1998 to June 1998, November 2001 to June 2003, March 2004 to June 2004, and from November 2008 to August 2009, with additional periods of Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision. In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The claims were most recently before the Board in December 2023, when they were remanded for additional development. The Board is satisfied that there has been substantial compliance with previous remanded directives and will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for an inguinal hernia. The Veteran contends that he is entitled to a compensable rating for his service-connected inguinal hernia. Specifically, the Veteran and his spouse contend that the internal attachments used for the Veteran's hernia repair cause him pain when bending, stretching, engaging in sexual intercourse, and moving daily. See February 2021 Hearing transcript; see also April 2023 VA Form 21-4138 Statement in Support of Claim. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. During the pendency of the Veteran's claim and appeal, the criteria for rating the digestive system were changed by an amendment to the rating schedule that became effective on May 19, 2024. 85 Fed. Reg. 89, 19735 (March 20, 2024). The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran's inguinal hernia disability is rated as noncompensable under DC 7338. 38 C.F.R. § 4.114. Under the rating criteria in effect prior to May 19, 2024, a noncompensable rating was assigned for a small inguinal hernia, reducible, or without true hernia protrusion. An inguinal hernia that is not operated on, but is remediable, was also assigned a noncompensable rating. A postoperative recurrent inguinal hernia, readily reducible, well supported by truss or belt, was rated as 10 percent disabling. A small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, was rated as 30 percent disabling. A large inguinal hernia, postoperative recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable, was rated 60 percent disabling. A Note to DC 7338 provided that 10 percent was to be added for bilateral involvement, provided the second hernia was compensable. Under the revised, May 19, 2024, rating criteria, DC 7338 provides for a noncompensable rating where there is an asymptomatic hernia; present and repairable, or repaired. A 10 percent rating is warranted where there is an irreparable hernia (new or recurrent) present for 12 months or more; with hernia size smaller than 3 centimeters. A 20 percent rating is warranted where there is an irreparable hernia (new or recurrent) present for 12 months or more; with both of the following present for 12 months or more: 1. Size equal to 3 cm or greater but less than 15 cm in one dimension; and 2. Pain when performing one of the following activities: (1) bending over, (2) activities of daily living (ADLs), (3) walking, and (4) climbing stairs. A 30 percent rating is warranted when there is an irreparable hernia (new or recurrent) present for 12 months or more; with both of the following present for 12 months or more: 1. Size equal to 3 cm or greater but less than 15 cm in one dimension; and 2. Pain when performing at least two of the following activities: (1) bending over, (2) activities of daily living (ADLs), (3) walking, and (4) climbing stairs. A 60 percent rating is warranted when there is an irreparable hernia (new or recurrent) present for 12 months or more; with both of the following present for 12 months or more: 1. Size equal to 15 cm or greater in one dimension; and 2. Pain when performing two of the following activities: (1) bending over, (2) activities of daily living (ADLs), (3) walking, and (4) climbing stairs. Note (2) provides that any one of the following activities of daily living are sufficient for evaluation: bathing, dressing, hygiene, and/or transfers. The Veteran received a VA examination for his inguinal hernia in September 2012. The examiner indicated the Veteran underwent surgery for an inguinal hernia on his right side in June 2009, but found no hernia detected on either side during the examination. The examiner reported no other significant diagnostic findings and referenced a January 2010 CT scan of the Veteran's abdomen characterized as "normal." The examiner reported no functional impacts of the Veteran's hernia condition. Though the examiner noted the Veteran's reports of persistent post-operative pain, they observed no residual hernia. Private neurological treatment records from March 2010 indicate the Veteran was seen for complains of pain in his right groin. The physician indicated the Veteran's symptoms were most likely musculoskeletal in nature, given the fact he had no numbness or paresthesias, or neuralgic type pain. The physician indicated he could not fully rule out nerve entrapments, such as of the genitofemoral or ilioinguinal nerves. An August 2018 radiological report indicated no changes to the "small springlike radiopaque structures" suspected projecting over the Veteran's right hemipelvis, which the radiologist noted might represent postsurgical changes to the prior hernia repair. During the February 2021 Board hearing the Veteran testified that he experiences pain in his groin during sex, testicular aches, and pain with increased activity. He reported that the pain has been so severe at times that he went to the emergency room. The Veteran indicated that the surgical mesh for his hernia repair was mounted with metal "spiral tacks" that cause pain. He noted an emergency room doctor indicated evidence of inguinal hernia repair with "stuff dangling in the canal." The Veteran has not undergone revision surgery but indicated he saw a neurologist after his original surgery. The Veteran received a new VA examination for his hernia in October 2022. The examiner characterized the Veteran's condition as residuals of right inguinal hernia. The examiner noted the Veteran's reports of persistent pain in the right groin region that worsens with activity. The examiner detected no hernia on the right or left side and noted a March 2017 angiogram CT of the Veteran's abdomen that revealed no acute abnormalities. The examiner described the functional impact of the Veteran's condition as persistent pain the right groin region, worsted with activity and sex that has caused 0-1 week of work time lost in the previous 12 months. During the examination, the Veteran reported he had been evaluated by several specialists who informed him of "plastic artifacts" inside of him due to the mesh placement for the hernia repair. The Veteran's spouse submitted an April 2023 Statement in Support of Claim noting that the attachments for the Veteran's inguinal hernia repair cause him pain when bending and during intercourse. The Veteran's spouse asserted the Veteran cannot properly stretch his leg due to stiffness and tightness in his groin. A September 2023 VA medical examiner indicated the record was silent for any medical records significant for artifacts, mesh dislodgement, or migration causing the Veteran's symptoms. The examiner noted the Veteran's post-surgical presentation with groin pain in 2009, but asserted the consultation was negative for any evidence of reoccurrence of the right inguinal hernia or any evidence of dislodged or migrating mesh that could cause his groin pain. Although the examiner received a March 2017 CT scan, they noted no acute abnormalities. The examiner concluded there was no evidence to suggest an artifact from the Veteran's inguinal hernia surgery repair is causing his symptoms. Rather, the examiner indicated review of the Veteran's previous consultations points to a high probability of nerve damage resulting from his surgery. Following a December 2023 Board remand, the Veteran received a new April 2024 VA examination for his claimed hernia condition. The examiner was asked to identify all current manifestations of the Veteran's hernia repair, to include the effect and impact of any remaining surgical hardware. The examiner noted the Veteran's reports of pain in the right inguinal canal but noted no objective findings of active or recurrent hernia or evidence of mesh malfunction. In an October 2024 addendum, the examiner concluded that, based on their examination, the Veteran's statements, and the evidence of record, the Veteran's symptoms are most accurately characterized as post-herniorrhaphy neuralgia secondary to the proper hernia repair. Based on the foregoing, the Board finds the evidence weighs persuasively against a compensable rating for the Veteran's hernia repair under the criteria in effect prior to May 19, 2024, and thereafter. Under the criteria in effective prior to May 19, 2024, a compensable rating for an inguinal hernia requires at least a postoperative recurrent inguinal hernia or irremediable hernia. There is no evidence of record suggesting the Veteran's hernia is recurrent or irremediable. VA examiners in September 2012, October 2022, and April 2024 found no evidence of a recurrent hernia. The Veteran's diagnosed inguinal hernia was remedied by surgery and has not reoccurred. Thus, although the Veteran reports pain resulting from his inguinal hernia repair, the evidence of record fails to show a recurrent or irremediable hernia consistent with the requirements for a compensable rating under DC 7338 prior to May 19, 2024. Under the rating criteria in effect after May 19, 2024, a compensable rating for inguinal hernia requires at least an irreparable hernia (new or recurrent). As previously noted, the record fails to show the presence of a new or recurrent irreparable hernia. Thus, the Veteran's residual pain most nearly approximates a repaired hernia, consistent with the criteria for a noncompensable rating under DC 7338 after May 19, 2024. The Board notes the Veteran's representative submitted November 2024 correspondence asserting the Veteran's condition should be rated by analogy and assigned a 10 percent rating under DC 7338-8683 pursuant to the holding in Banschbach v. McDonough, 34 Vet. App. 422 (2024). As a preliminary matter, the Board notes the holding in Banschbach concerned entitlement to separate ratings for neurological conditions such as radiculopathy. The Board finds the current case is distinguishable from Banschbach because the Veteran is not compensated for any nerve disability related to the hernia. Furthermore, to the extent that the representative suggests the Veteran's symptoms should be rated by analogy, the Board notes that when a condition is specifically listed in the rating schedule, it may not be rated by analogy and must be rated under the diagnostic code that specifically pertains to it. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Veteran's inguinal hernia, to include repair thereof, is specifically contemplated under DC 7338 before and after May 19, 2024. The Board also acknowledges the representative's assertion that the provisions of DeLuca v. Brown concerning pain and functional loss must be applied in this case. 8 Vet. App. 202 (1995). The holding in DeLuca requires the Board to consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness in evaluating disabilities of the musculoskeletal system. However, the Board notes that DeLuca applies to disabilities of the musculoskeletal system, and therefore does not apply to the Veteran's inguinal hernia disability. Accordingly, the Board finds the evidence of record weighs persuasively against finding a compensable rating for the Veteran's inguinal hernia condition throughout the period on appeal. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). The Board also notes, however, that the residuals of the hernia, including pain, have been characterized by the April 2024 VA examiner as post-herniorrhaphy neuralgia secondary to the proper hernia repair. Post-herniorrhaphy neuralgia is not a symptom or effect contemplated by either version of DC 7338. VA has a duty to maximize benefits. Bradley v. Peake, 22 Vet. App. 280 (2008). Further, VA must ensure a veteran is appropriately compensated before resorting to the extraschedular provisions of 38 C.F.R. § 3.321(b). Morgan v. Wilkie, 31 Vet. App. 162 (2019). For example, secondary service connection may be established for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The Veteran is service-connected for residuals of right inguinal hernia and also has a diagnosis of post-herniorrhaphy neuralgia, as indicated by the April 2024 VA examiner. Thus, the question remaining before the Board is whether the Veteran's post-herniorrhaphy neuralgia is proximately due to, the result of, or aggravated by his service-connected residuals, right inguinal hernia. The Veteran has complained of pain in his groin following his right inguinal hernia repair since 2009. A March 2010 private physician indicated the Veteran's symptoms were most likely musculoskeletal in nature, given the fact he had no numbness or paresthesias, or neuralgic type pain, but indicated he could not fully rule out nerve entrapments, such as of the genitofemoral or ilioinguinal nerves. A September 2023 VA medical examiner indicated that review of the Veteran's previous consultations points to a high probability of nerve damage resulting from his surgery. The April 2024 VA examiner noted the Veteran's reports of pain in the right inguinal canal but observed no objective findings of recurrent hernia or evidence of mesh malfunction. Based on their examination, the Veteran's statements, and the evidence of record, the examiner concluded the Veteran's pain is most accurately characterized as post-herniorrhaphy neuralgia secondary to the proper hernia repair. The examiner indicated persistent pain following groin hernia surgery is common, and that when pain persists for more than three months and is not shown to be related to other causes, a presumptive diagnosis of post-herniorrhaphy neuralgia can be made. The Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran's post-herniorrhaphy neuralgia is caused by his service-connected right inguinal hernia, to include repair thereof. Though a March 2010 private physician indicated the Veteran's symptoms were musculoskeletal in nature, they also opined that nerve entrapments could not be fully ruled out. A September 2023 VA examiner noted a high probability of nerve damage resulting from the right inguinal hernia repair, and an April 2024 VA examiner specifically diagnosed the Veteran with post-herniorrhaphy neuralgia as secondary to his hernia repair. Accordingly, and resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for post-herniorrhaphy neuralgia as secondary to inguinal hernia is granted. See Bradley, 22 Vet. App. at 80; Morgan, 31 Vet. App. at 162. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Buchanan, Attorney Advisor 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.