Question:

Jim,
I currently hold a 90% disability rating from the VA for various conditions associated with 28 years in the Marine Corps. It has taken repeated supplemental claims over the past 4 years to get my initial rating increased from 60% to 90% (all from errors in the original evaluations). I currently have several conditions still on appeal, but wanted to ask you about a Higher Level Review that was just completed on a claim that had two previous supplementals completed. I had a bilateral inguinal hernia when I was a child that was properly documented on my entry physical at MEPS. In 2008, while in Iraq, I was diagnosed with a possible recurrent inguinal hernia on the left side. I was seen several times for it while on Active Duty, but did not pursue fixing it until 2017 (retired in 2015). I filed my claim for a recurrent hernia prior to surgery, but I was not evaluated by the VA until after my surgery. I was subsequently granted 0% for left inguinal hernia post surgical repair. My argument on the supplemental claims as well as the higher level review was that the hernia should have been classified as recurrent and that it was aggravated by service (30% disabling by the VASRD). It was not until the higher level review that the VA acknowledged the hernia was actually recurrent, but they stated that a pre-existing condition could not be used for an increased evaluation as the condition occurred prior to military service and I was presumed sound upon entry. This makes no sense. Why would 38 CFR go into great detail discussing pre-existing conditions aggravated by service if a condition can not be evaluated for increased disability based upon that pre-existing condition? From my perspective, I should have been rated at 30% for a left recurrent inguinal hernia due to recurrence of a pre-existing hernia aggravated by service. What am I missing?  I also spent 21 months on long-term disability from my employer for the hernia surgery/recovery (as well as low back pain for which I am service-connected at 20%). Shouldn't I have been paid at the 100% rate for that period?
Thanks for what you do.

Jim's Reply:

You're arguing fine points of law, something that the VA loves to do. I won't join the fray because trying to guess if VA is right or wrong without your record in front of me is fruitless. What i can tell you is that if you disagree with any benefits decision VA has made, you have the right to appeal. The formal appeal is the only way to reach the end of these decisions...go for it.