Citation Nr: 0002782 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 94-05 733 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased evaluation for the service- connected postoperative residuals of a left inguinal hernia, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for the service- connected postoperative residuals of a right inguinal hernia, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) rating for the service-connected bilateral high frequency hearing loss. 4. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The veteran served on active duty from June 1966 to November 1967 and from February 1974 to October 1979. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an October 1993 rating action of the RO. By rating action in June 1999, the RO granted service connection and assigned a 50 percent rating for post- traumatic stress disorder (PTSD), effective on April 4, 1994. FINDINGS OF FACT 1. The veteran's service-connected postoperative residuals of the right and left inguinal hernias consist of manifestations of pain due to neuralgia without evidence of a recurrence on either side. 2. On VA audiometric examination in July 1998, the veteran demonstrated Level III hearing impairment in each ear. 3. The service-connected PTSD is shown to be productive of likely severe social and industrial inadaptability. 4. The veteran is likely shown to be precluded from performing substantially gainful employment as the result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for the assignment of ratings in excess of 10 percent for the service-connected postoperative residuals of a right inguinal hernia and postoperative residuals of a left inguinal hernia are not met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.114 including Diagnostic Code 7338, 4.124a including Code 8730 (1999). 2. The criteria for the assignment of a compensable rating for the veteran's service-connected bilateral hearing loss have not been met. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1 4.7, 4.10, 4.85, 4.87, 4.85 including Diagnostic Code 6100 (1999). 3. The criteria for the assignment of a 70 percent rating for the service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 4.130 including Diagnostic Code 9411 (1996). 4. The criteria for the assignment of a total rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Further, although a review the recorded history of a disability should be conducted to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all medical evidence of record, the Board will focus on the most recent medical findings regarding the current level of the service-connected bilateral hearing loss and postoperative right and left hernias. A. Postoperative right and left hernias Historically, service connection was granted by rating action in March 1980 for bilateral inguinal hernia repair on the basis of the service medical records which showed right and left inguinal hernia repairs during service. Noncompensable evaluations were assigned on the basis of the findings shown on VA examinations in February 1980. VA outpatient and hospital records dated from 1991 to 1998 show that the veteran underwent right inguinal exploration with release of entrapped ilioinguinal nerve in September 1992. A November 1992 operative report shows that he underwent exploration of left inguinal area and removal of left ilioinguinal nerve and tightening of external ring. A December 1992 outpatient record shows that the veteran complained of shooting pain on the superior edge of the wound with dull throbbing pain on post surface. On examination, there was numbness over the incision site with no numbness over the scrotum or medial thigh. Entries dated in January and February 1993 show continued treatment for pain in the area of bilateral hernia scars. A March 1993 VA consultation report shows that the veteran was seen for complaints of pain in the area of bilateral hernia scars. An examination revealed straight leg raising to 75 degrees with pain in the groin. There was sharp pain with compression of the scars. The examiner found that there was clearly local tenderness of each scar. On examination in April 1993, the examiner noted that medication had no specific benefit for pain. It was noted that lifting produced a burning painful sensation locally and that urinating produced a radiating pain along the inguinal ligaments. The examiner concluded that the veteran had residual difficulties from hernia surgery, resistant to multiple therapies. The examiner indicated that no local block or surgery would further improve the situation and added that the veteran would not be able to do work involving bending or lifting again. A November 1993 outpatient record shows that the veteran was seen continued complaints of pain. The veteran reported constant sharp pain, increasing with exertion. He also reported taking regular walks of one to two miles. The examiner indicated that the veteran had continued with attempted therapies for depression and chronic pain for the previous six months and was unable to work. Subsequent entries show continued treatment for complaints of chronic inguinal pain. Records received from the Social Security Administration show that the veteran was awarded disability benefits in January 1995, on the basis of "severe" psychiatric impairment. On VA examination in May 1999, the veteran reported having pain and discomfort in the area of the herniorrhaphy scars. He indicated that he had pain with deep breaths and if he stood, turned or picked up a basket. He reported that the pain was persistent and having hyperesthesia in the groin. He indicated that that he had been advised not to have any further surgery. On examination of the abdomen, there were bilateral inguinal scars measuring 7 or 8 centimeters with marked hypersensitivity in that area. The examiner indicated that no hernia was detected. There was an impulse bilaterally in the inguinal rings. The assessment included that of history of right and left herniorrhaphy with residual neuralgia and hypersensitivity. The veteran's service-connected postoperative right inguinal hernia is currently evaluated as 10 percent disabling under the provisions of Diagnostic Code 7338 (1999). The service- connected postoperative left inguinal hernia is evaluated as 10 percent disabling under Diagnostic Codes 7338-8730. Under Diagnostic Code 7338 (1999), a 10 percent rating is assigned for an inguinal hernia which is postoperative, recurrent, readily reducible and well supported by truss or belt. One that is small, postoperative recurrent, or unoperated irremediable, not well supported by truss or not readily reducible warrants a 30 percent evaluation. A 60 percent evaluation is assigned for an inguinal hernia which is large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. Mild to moderate incomplete paralysis of the ilio-inguinal nerve is rated noncompensable. Severe to complete paralysis warrants a 10 percent evaluation. 38 C.F.R. § 4.124a including Diagnostic Code 8730 (1999). After a review of the evidence of record, the Board finds that an evaluation in excess of 10 percent for either the right or left inguinal hernia residuals is not assignable. The medical evidence of record, including the most recent VA examination in 1999, shows no recurrence of an inguinal hernia on either side and provides no basis for the assignment of a compensable rating under the provisions of Diagnostic Code 7338. The evidence of record shows that the veteran has symptoms of right and left inguinal pain for which he could be assigned 10 percent rating based on ilioinguinal nerve impairment. As this would contemplate severe to complete neuralgia of that nerve, a higher rating is not for application for the service-connected inguinal hernia residuals on either side. As there is no showing of a tender or painful scar as distinct from the neuralgia associated with the service-connected disabilities, a separate rating under the Diagnostic Code 7804 is not warranted. The weight of the evidence is against the assignment of ratings higher than 10 percent for service-connected postoperative of right and left inguinal hernia residuals. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt doctrine is inapplicable; the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Bilateral hearing loss Historically, service connection was granted by rating action in March 1980 for bilateral high frequency hearing loss, evaluated as noncompensable, on the basis of the service medical records which showed evidence of bilateral high frequency hearing loss with right ear infection during service. On the most recent VA audiological evaluation in July 1998, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 70 65 100 100 LEFT 80 80 90 100 100 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 in the left ear. For VA purposes, impairment of auditory acuity contemplates the organic hearing loss for speech. 38 C.F.R. § 4.87 (1998). The examinations permit a standardization of methods and uniform conditions, so that the performance of each person can be compared with that of a person having normal hearing acuity. The audiometric findings will provide an accurate basis upon which to evaluate the veteran's entitlement to disability compensation, as provided by 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 hertz (cycles per second). Audiometric test results can be translated into a numeric designation ranging from level I to level XI to evaluate the degree of disability from bilateral service- connected defective hearing. Both the previous and revised Schedules for Rating Disabilities establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. In addition, the evaluations derived from the schedule contemplate the proper allowance for improvement of hearing acuity by hearing aids. 38 C.F.R. Part 4, §§ 4.85, 4.86, 4.87 including Diagnostic Codes 6100 to 6110. The Board notes that the criteria for evaluating diseases of the ear and other sense organs, to include disability from hearing loss, were amended effective on June 10, 1999. However, the new criteria do not change the analysis concerning the rating assignable for the service-connected bilateral hearing loss in this case. According to a report of a VA audiological examination performed in July 1998 the average puretone decibel losses were 83 in the right ear and 92 in the left ear. The findings on this examination demonstrate the greatest degree of hearing loss shown by the evidence of record. 38 C.F.R. § 4.87, Table VI provides for level III for average puretone decibel loss of the right ear of 83 dB with a speech recognition ability of 96 percent and level III for average puretone decibel loss of the left ear of 92 dB with a speech recognition ability of 100 percent. Considering these findings, a compensable evaluation is not warranted. 38 C.F.R. §§ 4.85, 4.87 including Diagnostic Code 6100. In making the above determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) (West 1991). However, the preponderance of the available evidence in the present case is against claim for a compensable rating for service-connected bilateral hearing loss. II. Total rating for compensation purposes based on individual unemployability due to service connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that, if there is only one such disability, this disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (1999). Under Diagnostic Code 9411 of the Rating Schedule, prior to November 7, 1996, a 70 percent evaluation is warranted when the ability to establish and maintain effective or favorable relationships with people is severely impaired, and when the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain and retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community or that there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior or that the individual is demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4 including Diagnostic Code 9411. The most recent VA psychiatric examination was conducted in April 1999. The veteran reported dissociative states and flashbacks several times per month. He reported sleep difficulties and insomnia. He indicated that he had vivid nightmares about Vietnam. He reported panic attacks and occasional paranoia. He reported perceptual changes and seeing figures or "ghosts" out of the corner of his eyes. He indicated that he sometimes heard his name called. He indicated that he had been seclusive and avoided people in order to avoid being angry. He reported problems with relationships with women and being verbally abusive. He reported a history of many menial jobs. On the VA mental status evaluation, the examiner noted that the veteran got quiet after discussing Vietnam traumas. He was not paranoid but, as noted, reported paranoid symptoms. Mood was depressed, and the veteran denied any active homicidal or suicidal thoughts. Thought content varied appropriately, and short-term memory was grossly deficient. Affect was generally restricted, and he was alert and oriented times four. Formal judgment was intact; insight was fair, and intelligence was average to above average. The diagnosis was that of PTSD, severe, as manifested by intrusive thoughts, flashbacks, insomnia, nightmares, avoidance of reminders of trauma, hyperarousal and depression, moderately severe. The Global Assessment of Function Scale was currently 50. The examiner concluded that the veteran is significantly impaired. It was noted that he could not carry on relationships and was unable to hold a job. After a review of the entire record, the Board finds that the service-connected PTSD is likely manifested by severe impairment in the veteran's ability to establish and maintain effective or favorable relationships with people and his ability to obtain and retain employment. Therefore, the Board concludes that service-connected PTSD should have been assigned a 70 percent rating under the criteria of Diagnostic Code 9411 in effect prior to November 7, 1996.. In addition, given the nature and extent of his other service-connected disabilities, the Board is of the opinion that a total rating based on individual unemployability due to the service-connected disabilities also is warranted. The evidence of record includes recently obtained opinions of VA physicians to the effect that the PTSD and the bilateral inguinal hernia residuals have significantly disrupted his ability to perform substantially gainful employment. Therefore, the preponderance of the evidence supports the assignment of a total rating based on individual unemployability due to his service-connected disabilities. ORDER An increased rating for the service-connected postoperative residuals of the left inguinal hernia is denied. An increased rating for the service-connected postoperative residuals of the right inguinal hernia is denied. An increased rating for the service-connected bilateral high frequency hearing loss is denied. A total rating based on individual unemployability due to service-connected disabilities is granted, subject to the regulations governing the payment of monetary benefits. STEPHEN L. WILKINS Member, Board of Veterans' Appeals