Citation Nr: 0301693 Decision Date: 01/29/03 Archive Date: 02/07/03 DOCKET NO. 02-08 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to restoration of a 10 percent rating for service-connected residuals of left groin strain, currently noncompensably rated. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ward, Associate Counsel INTRODUCTION The veteran had active duty service from January 1983 to January 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision issued by the Newark, New Jersey, Regional Office (RO) of the Department of Veteran Affairs (VA), that reduced the disability rating for the veteran's service- connected residuals of left groin strain (hereinafter left groin disability), from 10 percent to 0 percent disabling. The veteran testified at a hearing before the undersigned member of the Board sitting at the RO in September 2002. A copy of the transcript of that hearing is of record. FINDINGS OF FACT 1. By rating decision of August 2001, the RO reduced the veteran's evaluation for residuals of left groin strain from 10 percent, which had been in effect since February 1, 1999, to 0 percent, effective from November 1, 2001. 2. There has not been an improvement in the veteran's service-connected residuals of left groin strain. CONCLUSION OF LAW Restoration of the 10 percent evaluation for the veteran's service-connected residuals of left groin strain is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991& Supp. 2002); 38 C.F.R. §§ 3.344(c), 4.1, 4.2, 4.10, 4.71a, Diagnostic Code 5399-5316 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends, in substance, that a reduction in the disability evaluation of his service-connected residuals of left groin strain was not warranted as his groin continues to be painful. Duty to Assist and Notify During the pendency of this claim, the Veterans' Claims Assistance Act of 2000 (VCAA) was signed into law. This legislation is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). It essentially eliminates the requirement that a claimant submit evidence of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. Specifically, it requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Regulations implementing the VCAA are now published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). Except as specifically noted, the new regulations are effective November 9, 2000. The Board is satisfied that all relevant facts have been properly and developed and no further assistance to the veteran is required in order to comply with the duty to assist. In this regard, the Board notes that by virtue of the June 2001 proposed rating reduction decision, the August 2001 final rating reduction decision, and the March 2002 statement of the case, the veteran has been advised of the laws and regulations governing the claim, and the basis for denial of the claim. The veteran was notified of the VA's duty to assist and notify, and of what he could do to assist with his claim, and what evidence he needed to substantiate his claim; he was given notice of what evidence he needed to submit and what evidence VA would try to obtain. A VA examination was scheduled in June 2001 for evaluation of his disability. The veteran was afforded a hearing before the Board in September 2002, and he has been given ample opportunity to submit additional evidence and written argument. The Board finds that the veteran has been provided with adequate notice of the evidence needed to successfully prove his claim and that there is no prejudice to him by appellate consideration of the claim at this time without another remand of the case to the RO for providing additional assistance to the veteran in the development of his claim as required by the VCAA or to give the representative another opportunity to present additional evidence and/or argument. Bernard v. Brown, 4 Vet. App. 384 (1993). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The record on appeal demonstrates the futility of any further evidentiary development and that there is no reasonable possibility that further assistance would aid him in substantiating his claim. In light of the Board's restoration of the prior rating, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Factual Background By rating decision of March 1999, service connection was granted for left groin disability, and the veteran was awarded a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5399-5316, effective from February 1, 1999. Based upon a June 2001 VA examination, the RO proposed a reduction to 0 percent in a June 2001 rating decision. See 38 C.F.R. § 3.105(e). By final rating decision in August 2001, the veteran's disability evaluation was reduced to 0 percent, effective November 1, 2001, under Code 5399-5316. The record reveals that the veteran underwent VA examination in January 1999. He reported recurrent left groin pain from a golf stub injury a few years prior. The injury was described as one in which a golfer misses the ball and hits the dirt and golf stub, which causes acute groin pain. The examiner found no inguinal or umbilical hernias, but noted a diagnosis of residuals of 'golf stub' injury. In June 2001 VA examination, the veteran reported a history of groin pain. He stated that it becomes painful when he lifts anything heavy or coughs or sneezes. The pain was reported as radiating down in to the inguinal region and the left upper thigh region. On examination, the left groin was noted as essentially normal, with symptoms of pain radiating into the left groin region. In the proposed rating reduction of June 2001, the RO found that the evidence did not support a finding of moderate left groin disability to warrant continuation of the 10 percent rating under Code 5316, and reduced the rating to 0 percent, effective from November 1, 2001. The veteran submitted a notice of disagreement received in July 2001, in which he argued that the medical examination on which the reduction was based was inadequate. He reported that during the course of this examination, he was told by the VA physician that he had a possible left hernia, and needed to careful of daily lifting or exercising activities. In his VA Form 9, substantive appeal, dated in May 2002, the veteran further argued that his groin strain injury continued to worsen. The veteran also submitted a letter dated in August 2002, from a private physician, which indicated that the veteran was seen in June 2001, with complaints that he had suffered a left groin injury in service, and was still experiencing discomfort from the injury. The examiner noted that prior findings showed an "open" external ring, and no presence of hernia, which were also the current findings. The examiner stated that the veteran subjectively continues to feel a left groin discomfort, and needs to use proper lifting techniques in order to avoid the discomfort in this area. The veteran testified before the undersigned member of the Board in September 2002, to the worsening of his groin discomfort. He reported that the pain was not excruciating, but constant. He stated that he has to be careful in lifting things. He reiterated his assertions that the examination of his groin was inadequate. He testified to feeling strain on lifting, after which he needed to sit down and rest for a minute. He reported pain that lasted for days if he lifts something that causes strain. He also testified to impairment on his job as a building inspector, in going up and down stairs, and crawling through crawl spaces. Analysis The Board is aware that 38 C.F.R. § 3.344(a) and (b), regarding stabilization of disability evaluations, do not apply in this case because the 10 percent evaluation was in effect for less than five years. See Smith v. Brown, 5 Vet. App. 335 (1993); 38 C.F.R. § 3.344(c). Those provisions require that examinations less full and complete than those in which the payments were authorized or continued will not be used as a basis of reduction. As regards ratings which have been in effect less than 5 years, (as the 10 percent rating in this case) the provisions provide that "[r]eexaminations disclosing improvement . . . will warrant reduction in rating." 38 C.F.R. § 3.344(c). In cases where 38 C.F.R. § 3.344(a) is inapplicable, the United States Court of Appeals for Veterans Claims (Court) has indicated that consideration must be given to 38 C.F.R. § 4.1 (requires each disability be viewed in relation to its history); 38 C.F.R. § 4.2 (requires examination reports to be interpreted in light of the whole recorded history and requires consideration of each disability from the point of view of the veteran working or seeking work); 38 C.F.R. § 4.10 (requires determination of the ability of the affected part of the body to function under the ordinary conditions of daily life, including employment); and 38 C.F.R. § 4.13 (requires the rating agency to assure itself, when any change in evaluation is to be made, that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms). Faust v. West, 13 Vet. App. 342, 350 (2000). The Court further stated that it was VA's responsibility "in any rating-reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations" and that "not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Smith v. Brown, 5 Vet. App. at 421. The Court has also indicated that the VA does not err in considering nonmedical evidence in rating reduction cases. Faust, 13 Vet. App. at 350. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is thus required to establish, by a preponderance of the evidence and in compliance with the aforementioned regulations, that the evidence weighs against the claim for restoration in order to uphold a rating reduction. Smith v. Brown, 5 Vet. App. at 421. In this case, the Board finds that a preponderance of the evidence does not show that a rating reduction was warranted. The veteran's disability is rated by analogy under Diagnostic Code 5399-5316. Code 5316, Muscle Group XVI, rates the pelvic girdle group which affects flexion of the hip. Under this code, a noncompensable rating is assigned for slight injury, a 10 percent rating for moderate injury, a 30 percent rating for moderately severe injury, and a 40 percent rating for severe injury. The evidence demonstrates that the veteran's residuals of the left groin disability are manifested by subjective complaints of pain radiating to the left extremity, and some functional impairment in the performance of his employment as a building inspector. There is reported constant pain in the left groin, with exacerbations and fatigue on occasion after lifting. Although the VA examiner noted no objective findings in the groin, the veteran's subjective complaints were noted. Further, the private physician noted subjective complaints of pain. None of the examiners discounted the veteran's complaints. The Board notes that the June 2001 VA examination as compared to the January 1999 VA examination shows no findings of improvement in the veteran's left groin disability. Even if any differences between the two examinations should qualify as an "improvement," and none exist, such a finding cannot be supported when considered in conjunction with all the subjective medical evidence of record as required by 38 C.F.R. § 4.1. Thus the record fails to demonstrate persuasive evidence of improvement in the veteran's condition. In addition, the veteran's September 2002 hearing testimony reveals that, in his opinion, his left groin disability had not improved. He is competent to testify as regards his symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The veteran reports continued pain, continued impairment in performing certain functions on the job such as climbing stairs and crawling, and the continued necessity of massaging the area, and exercising care in daily activities. In view of the medical findings, and together with the veteran's current complaints which have remained essentially unchanged, the Board is of the opinion that the medical evidence of record does not demonstrate improvement and, therefore, is insufficient to justify a reduction of the 10 percent disability rating for his service-connected left groin disability. Accordingly, restoration of a 10 percent disability rating is warranted, effective from November 1, 2001, the date of reduction. ORDER A claim for restoration of a 10 percent disability evaluation for residuals of left groin strain is granted, subject to the laws and regulations governing the payment of monetary benefits. J. E. Day Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.