BVA9504807 DOCKET NO. 93- 01 875 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased evaluation for residuals of right inguinal hernia, currently evaluated as no percent disabling. 2. Entitlement to service connection for diverticulosis, claimed as secondary to right inguinal hernia. 3. Entitlement to service connection for hemorrhoids, claimed as secondary to right inguinal hernia. 4. Entitlement to service connection for a prostate disorder, claimed as secondary to right inguinal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from July 1943 to February 1946. This appeal arises from May 1990 and subsequent rating decisions of the Detroit, Michigan, regional office (RO). The May 1990 rating decision denied a compensable evaluation for the veteran's residuals of right inguinal hernia. An April 1992 rating decision continued the previous denial, and also denied service connection for diverticulosis and hemorrhoids, and reopened and denied a previously adjudicated claim for service connection for a prostate disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a compensable evaluation for his service-connected residuals of right inguinal hernia. He contends that he has pain and a pulling sensation in the area of the herniorrhaphy scar as well as pain in the testicles. He also contends that he is entitled to service connection on a secondary basis for diverticulosis, hemorrhoids, and a prostate condition, which he claims have resulted from his right hernia condition. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the claim for an evaluation of 10 percent, and no higher, for residuals of right inguinal hernia, and that the veteran has not submitted well grounded claims for service connection for diverticulosis, hemorrhoids, and a prostate disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim for increased rating for residuals of inguinal hernia. 2. The veteran's service-connected residuals of right inguinal hernia repair consist of a scar which is at times painful and tender on objective demonstration, but there is no evidence of a recurrent or irremediable hernia. 3. The veteran's service-connected residuals of right inguinal hernia repair do not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. 4. The veteran has not met the initial burden of presenting evidence to justify a belief by a fair and impartial individual that his claims for service connection for diverticulosis, hemorrhoids, or a prostate disorder claimed as being due to his service connected right inguinal hernia are well grounded. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 10 percent, and no higher, for residuals of right inguinal hernia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Codes 7338, 7804 (1994). 2. Any failure by the RO to refer the case to the Director of Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. § 3.321(b)(1) (1994). 3. The veteran has not submitted evidence of well grounded claims of service connection for diverticulosis, hemorrhoids and a prostate disorder claimed as being proximately due to or the result of a service-connected disability. 38 U.S.C.A § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Residuals of Right Inguinal Hernia Repair The veteran's claim for a compensable disability evaluation for residuals of right inguinal hernia repair is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The service medical records show that the veteran was found to have a right indirect inguinal hernia in September 1944. In March 1945, a diagnosis of indirect strangulated right inguinal hernia was made. Surgical reduction was accomplished. The service separation examination in February 1946 noted hernia in 1944 by history. There were no residuals noted. Service connection for scar, hernia, inguinal, right, residual of surgical relief in service, was granted in September 1946. A noncompensable evaluation was assigned from February 1946. A March 1965 rating decision listed the service-connected disability as hernia, inguinal, right, operated. A noncompensable evaluation was in effect under code 7338 from March 1946. The noncompensable evaluation has been continued in subsequent rating decisions. The veteran contends that he is entitled to a compensable evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The veteran's right inguinal hernia residuals are currently rated under code 7338. Under that code a 30 percent evaluation requires a small, postoperative recurrent or unoperated irremediable hernia, which is not well supported by a truss or is not readily reducible. A 10 percent evaluation is contemplated for postoperative, recurrent, readily reducible hernias well supported by a truss or belt. The current noncompensable evaluation is appropriate for hernia not operated, but remediable, or for a small, reducible hernia or one without true hernia protrusion. 38 C.F.R. Part 4, Diagnostic Code 7338 (1994). A 10 percent evaluation is also appropriate where superficial scars are shown to be tender and painful on objective demonstration. 38 C.F.R. Part 4, Diagnostic Code 7804 (1994). A May 1990 VA treatment report notes that the veteran was seen with complaints of pain at the surgical site of his 1940's herniorrhaphy. On examination, the surgical scar was clean and well-healed. There was tenderness and mild bulging at the scar area. A September 1990 statement from the J. M. Siero, M. D., reported that the veteran had a history of hernia repair surgery during World War II, and a two year history of a pulling sensation at the junction of the thigh to the abdomen. This was described as tightness rather than pain. On examination, the right testicle and cord were normal. The right cord was very tender and minimally enlarged at the external inguinal ring. The doctor opined that it was possible that with certain positions the external ring narrowed, causing a compression of the cord and tightness. In May 1991, the veteran was seen with a right inguinal pulling sensation and burning in the area which radiated down the medial aspect of the thigh. On examination, a right inguinal area scar was noted. There was no palpable hernia or visible inguinal swelling. There was tenderness to palpation of the internal ring. The impression was probable right ilioinguinal nerve entrapment. Recurrent hernia was ruled out. A VA examination was conducted in August 1991. The veteran reported a history through the years since his hernia operation of numbness, burning and pulling sensations in the testicles which impeded his walking. On examination, a right inguinal herniorrhaphy was described as well-healed with no reoccurrence. The testicles were the same size bilaterally. The epididymis was nontender and the scrotal contents were normal. The diagnosis was status post right inguinal herniorrhaphy with no residuals. The recent examination findings demonstrate that the veteran's residuals of right inguinal hernia consist of a scar which is at times painful or tender. There is no basis to assign a compensable disability evaluation under code 7338 since there is no showing of a recurrent or irremediable hernia in the recent medical records. 38 C.F.R. Part 4, Diagnostic Code 7338 (1994). However, based on the veteran's complaints of pain and tenderness in the area of the herniorrhaphy scar, confirmed by objective demonstration, the Board finds that he is entitled to a 10 percent evaluation under code 7804. 38 C.F.R. Part 4, Diagnostic Code 7804 (1994). The schedular evaluations are adequate to compensate the veteran's right inguinal hernia residuals. This is not an exceptional case where the schedular evaluations are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. §§ 3.321(b)(1) (1994). II. Diverticulosis, Hemorrhoids and Prostate Disorder The veteran contends that he has diverticulosis, hemorrhoids and a disorder of the prostate which resulted from his service- connected residuals of right inguinal hernia. He contends that he is entitled to service connection on a secondary basis for these disorders. Service connection may be established for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). The threshold question to be answered is whether the veteran has presented evidence of well-grounded claims, that is, ones which are plausible. If he has not presented well-grounded claims, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim has been defined as a "plausible claim, one that is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In short, VA is not required to adjudicate a claim until the veteran has met his initial burden of submitting evidence that his claim is well- grounded. "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well-grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim for service connection, this means that the evidence presented must, in some fashion link the claimed disability to a period of military service or to an already service connected disability. See 38 § U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1994); Tirpak v. Derwinski and Grottveit v. Brown, 5 Vet.App. 91 (1993). The Board has carefully reviewed the evidentiary record with respect to these issues of service connection for diverticulosis, hemorrhoids and a prostate disorder claimed as secondary to the service connected inguinal hernia. In the final analysis, as will be explained below, the veteran's claims for secondary service connection are not well grounded. The service medical records do not show any treatments for or complaints of any rectal or prostate problems. On a VA hospitalization report dated in January and February 1965, the veteran reported that he had been struck in the abdomen by a steering wheel in a car accident four months earlier. He stated that since that time he had experienced difficulty voiding, abdominal pain, nocturia, hesitancy and frequency. He reported that prior to the accident he had not had any urinary complaints. A urethrogram and cystoscopy were accomplished. No organic disease was noted. The RO denied service connection for prostatism in March 1965. No appeal was filed and the decision became final. In April 1992, the RO effectively reopened the veteran's claim for a prostate disorder. Accordingly, the Board will consider the entire evidentiary record in evaluating the veteran's claim for service connection for a prostate disorder as secondary to residuals of right inguinal hernia repair. A May 1979 private medical treatment note showed that the veteran had complaints of discomfort in the lower abdomen. He had a history of transurethral resection of the prostate at age 39 with some subsequent hesitancy. The prostate was noted to be moderately enlarged on examination. A June 1979 private hospital report indicates that the veteran was seen with urinary complaints. A cystoscopy was done which showed trabeculation of the bladder, some urethral stricture and medium bar enlargement of the prostate. A May 1991 VA treatment note indicated that the veteran had a history of benign prostatic hypertrophy with prostatectomy. On the VA examination in August 1991, the examiner noted that the prostate was smooth with no masses and of normal size. A June 1991 VA colonoscopy showed external and internal hemorrhoids and diverticula. Diverticular disease was diagnosed. An August 1991 treatment report indicated that the veteran's diverticulosis was stable. The prostate symptomatology appears to have begun following a car accident nearly 20 years after service, and the diverticulosis and hemorrhoids were first noted approximately 45 years after service. The veteran has not submitted medical evidence linking his diverticulosis, hemorrhoids or prostate problems to his service-connected right inguinal hernia residuals. The Board has considered the testimony of the veteran to the effect that he considers these conditions to be related to his inservice hernia repair. However, the veteran's lay testimony alone is not competent evidence to support a finding on a medical question requiring special experience or special knowledge. His statement as to medical causation is not competent evidence that would render his claims well-grounded. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In the absence of any medical evidence to support the veteran's contentions regarding the causation of these disorders, his claims cannot stand. See Williams v. Brown, No. 91-1777, slip op. at 2 (U.S. Vet. App. Feb. 17, 1993). The medical record in this case does not provide a basis upon which to conclude that any of the veteran's gastrointestinal or prostate complaints are proximately due to or the result of his service-connected residuals of right inguinal hernia repair. Based upon the foregoing, the Board concludes that the veteran has failed to meet his initial burden of presenting evidence that his claims for service connection on a secondary basis for diverticulosis, hemorrhoids, and a disorder of the prostate are plausible or otherwise well-grounded. Under these circumstances his claims are dismissed. Glynn v. Brown, 6 Vet.App. 523 (1994). 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. 3.310(a) (1994). ORDER An evaluation of 10 percent, and not in excess thereof, for residuals of right inguinal hernia is granted, subject to the applicable laws and regulations governing the payment of monetary awards. The claims of service connection for diverticulosis, hemorrhoids, and a prostate disorder are dismissed as they are not well- grounded. The RO should take appropriate adjudicatory action consistent with this decision in regard to these matters. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.