Citation Nr: 1305476 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 10-41 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for right inguinal hernia. 2. Entitlement to an extra-schedular rating for service-connected right inguinal hernia under 38 C.F.R. § 3.321(b)(1). REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from March 1976 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee, which continued the assignment of a 10 percent disability rating for right inguinal hernia. In February 2011, the Veteran provided testimony before the undersigned Veterans Law Judge at a video-conference hearing. A transcript of that hearing is on file. The matter on appeal was previously before the Board in February 2012, at which time it was remanded for additional evidentiary development. As will be further explained herein, there has been substantial compliance with the actions requested in the remand with respect to addressing the increased rating claim for right inguinal hernia on a schedular basis and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). However, consideration of an extra-schedular rating for right inguinal hernia requires a remand as the actions requested pursuant to this matter as described in the February 2012 Board remand were not completed. A February 2013 review of the Virtual VA paperless claims processing system reflects that VA outpatient/CAPRI records current to September 2012 were added to the file and were considered in the October 2012 SSOC. The claim of entitlement to an extra-schedular rating for service-connected right inguinal hernia under 38 C.F.R. § 3.321(b)(1) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Throughout the entirety of the appeal period, the Veteran's right inguinal hernia has been manifested by pain in the area of the groin and abdomen, but no hernia has been present and no truss or belt is required. 2. Throughout the entirety of the appeal period, the Veteran's right inguinal hernia has not been manifested by moderately severe symptoms of partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain, symptomatic scarring or scarring of such a size so as to warrant a compensable rating, or neurological impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for right inguinal hernia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7338 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. With respect to the increased rating claim for a right inguinal hernia on appeal, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a June 2009 letter, sent prior to the initial unfavorable decision issued in November 2009, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the increased rating claim on appeal has been obtained. In addition, the Veteran provided testimony at a Board video-conference hearing held in February 2011. The Veteran's service treatment records (STRs) and post-service VA treatment records dated through September 2012 were obtained for the file. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. VA's duty to assist includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). During the appeal period, a VA examination was conducted in October 2009. Pursuant to a February 2012 Board remand, another VA examination was conducted in March 2012. The Veteran and his representative have not alleged that either of these examinations were inadequate or that the Veteran's condition has become worse since last evaluated. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected right inguinal hernia as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. Additionally, in February 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the February 2011 hearing, the issue on appeal was noted and the Veteran offered testimony regarding the symptoms and impact his hernia has on his daily life and employment. Furthermore, testimony was elicited regarding any outstanding records and the Veteran indicated that all of his treatment through the Nashville, Tennessee, VA Medical Center. As such, on remand, updated treatment records from such facility were obtained. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted other than VA clinic records. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim for an increased rating. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. As indicated in the Introduction, in February 2012, the Board remanded the case for additional development. As discussed in the preceding paragraphs, VA treatment records dated through September 2012 have been obtained and the Veteran was afforded a VA examination in March 2012 so as to determine the nature and severity of his right inguinal hernia in accordance with the February 2012 remand directives. Therefore, the Board finds that the AOJ has substantially complied with the February 2012 remand directives such that no further action is necessary in this regard. See D'Aries, supra. of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Background By rating action of August 1976, service connection was established for right inguinal hernia, for which an initial noncompensable evaluation was assigned effective from June 1976. In an October 2004 rating action, an increased evaluation of 10 percent was granted effective from February 2001. In a March 2006 Board decision, the 10 percent evaluation for right inguinal hernia was confirmed and continued. A March 2009 VA treatment record reflects complaints of right groin pain. The Veteran indicated that he experienced flare-ups every other month, but felt that such were increasing slightly in frequency and severity. On April 30, 2009, the Veteran filed an increased rating claim for right inguinal hernia, representing the start of the appeal period applicable to this case. A May 2009 VA treatment record reflects that the Veteran complained of chronic right groin discomfort that he described as pulling, "drawing," and deep aching at times that is painful. A VA examination was conducted in October 2009. The Veteran reported that right inguinal hernia was diagnosed in 1981, with surgical removal. He complained of pain down the right lower extremity and in the area around the waist, with symptoms occurring several times a week, often in conjunction with strenuous activity or standing for long periods of time. The report indicated that the course since onset was progressively worse, and that the Veteran was not under any current treatment. Physical examination was negative for hernia. An assessment of right inguinal hernia, status post repair with resultant pain in the right lower extremity, which was increasing in frequency and severity. It was noted that he had been unemployed for less than a year, but had not retired. He mentioned that it was hard to find work. The VA examiner indicated that the hernia condition affected the Veteran's daily activities in the following ways and degrees: moderate- chores, exercise, sports recreation; mild - shopping; and not at all - traveling, feeding, bathing, dressing, toileting, grooming. In a December 2009 statement, the Veteran indicated that an increased evaluation was warranted because he had nerve damage of the right leg, increasing in severity from standing and lifting. In a second statement of September 2010, the Veteran indicated that he believed that he met the criteria for the assignment of an extra-schedular evaluation, and mentioned additional manifestations including constipation, diarrhea, and pain in the lower back. The Veteran indicated that he was taking over the counter medications, and mentioned that his ability to perform labor-related work, described as the sole means of his livelihood, was affected on a daily basis. September 2010 and October 2010 VA treatment records reflect that the Veteran complained of intermittent pain to the groin that radiates down his right leg. In September 2010, it was noted that such was in the right lower back and radiated to the groin and upper thigh. The Veteran provided testimony at a Board video-conference hearing held in February 2011. The Veteran testified that a right inguinal hernia had been identified and treated in service, ultimately resulting in a medical discharge. He indicated that VA performed hernia repair surgery post-service. He indicated that since that surgery, he had experienced residual problems from the hernia. In his testimony, the Veteran stated that doctors had explained that due to scar tissue a nerve had been pressed in during the surgery for which he was provided pain medication. He described pain in the areas of the groin, abdomen and legs. The Veteran indicated that he was working and had established his own business, but was unable to do physical labor himself secondary to pain. He stated that he received all of his medical treatment through VA. A September 2011 VA treatment record reflects chronic right groin pain. It was noted that he had an inguinal hernia repair in the military in the 1970's and the pain had been intermittent since such time. Upon examination, the Veteran's right lower abdomen appeared benign with no rebound. It was also noted that there was no diarrhea, constipation, urinary retention, neck stiffness or saddle anesthesia, foot drop or appreciable weakness, numbness, or tingling. Pursuant to a February 2012 Board Remand, a VA examination was conducted in March 2012 and the claims folder was reviewed. The report indicated that the Veteran had undergone hernia repair surgery in 1980, with subsequent residuals of pain with lifting/labor activities, and radiation into the groin. On examination, no hernia was detected and there was no indication for a supporting belt. The examiner did note that the Veteran had scarring related to the inguinal hernia, which was described as less than 39 square cm, and not painful or unstable. The report also reflected that the Veteran occasionally noted having pain or strain within the surgical scar area of the inguinal canal. The examiner determined that the hernia condition impacted the Veteran's ability to work, as manifested by limitations on labor intensive activities, bending over, picking up heavy objects, and pain radiating to the groin area. The examiner opined that he was unsure whether the Veteran would be able to sustain employment in a labor-intensive work environment, but did not feel the condition prohibited sedentary types of employment. Analysis The Veteran contends that the service-connected right inguinal hernia warrants an evaluation in excess of 10 percent. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his or her 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. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, the Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right inguinal hernia has been rated 10 percent disabling under Diagnostic Code 7338 of the rating schedule since February 2001. Under Diagnostic Code 7338, a noncompensable evaluation is warranted for a small, reducible inguinal hernia; for one which is without true hernia protrusion; and for any preoperative inguinal hernia which is remediable. A 10 percent evaluation is warranted for a recurrent postoperative inguinal hernia which is readily reducible and is well supported by a truss or belt. A 30 percent evaluation is warranted for a small recurrent postoperative hernia, or an unoperated irremediable hernia, which is not well supported by a truss or is not readily reducible. When there are bilateral inguinal hernias, the more severely disabling hernia is evaluated, and 10 percent is added for the second hernia if it is disabling to a compensable degree. 38 C.F.R. § 4.114 and Part 4, Code 7338 (2012). The Board has reviewed the pertinent clinical evidence in this case and notes that there is no indication of recurrence of a hernia at any time during the appeal period. In this regard, VA records dated from 2008 to 2012 fail to document the presence of recurrence of a hernia. Similarly, VA examinations of October 2009 and March 2012 were negative for evidence of a hernia. Moreover, the Veteran has not contended that his hernia has reoccurred. In essence, all of the aforementioned evidence has consistently failed to reveal any evidence of a symptomatic hernia or any evidence that the Veteran uses a support such as a truss or belt in conjunction with his claimed hernia condition. Accordingly, the criteria warranting the grant of a 30 percent evaluation have not been met for any portion of the appeal period. In fact technically, the criteria supporting the assignment of a 10 percent evaluation have not been met during the appeal period under code 7338. However, as indicated in the rating decision issued in October 2004 at which time an increased evaluation of 10 percent was granted, this rating was assigned by analogy using the rating criteria found under 38 C.F.R. § 4.114, Diagnostic Code 7301, pertaining to adhesions of the peritoneum. Under that criteria, ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbances of motility, actual partial obstruction, reflex disturbances, presence of pain. 38 C.F.R. § 4.114 (2012). Under Diagnostic Code 7301, a 0 percent rating is warranted for mild symptoms. A 10 percent rating is warranted for moderate symptoms of pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is warranted for moderately severe symptoms of partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is warranted for severe symptoms of definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. 38 C.F.R. § 4.114, Diagnostic Code 7301 (2012). In this case, there has been no lay or clinical evidence presented during the appeal period which is indicative of moderately severe symptoms of partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. In this regard, while the medical and lay evidence reflect groin discomfort that the Veteran has described as pulling, "drawing," and deep aching at times that is painful, or pain or strain within the surgical scar area of the inguinal canal, such is contemplated in his 10 percent rating under Diagnostic Code 7301 as such specifically considers moderate symptoms of pulling pain on attempting work or aggravated by movements of the body. Accordingly, a rating in excess of 30 percent is not warranted under 38 C.F.R. § 4.114, Diagnostic Code 7301 (2012). For the sake of completeness, the Board has also considered whether an increased rating is warranted under 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7803, 7805. The Board observes that the schedular rating criteria pertaining to the skin were amended, effective October 23, 2008. 38 C.F.R. § 4.118, DCs 7800-7805 (2012); 67 Fed. Reg. 49590 -49599 (July 31, 2002). VAOPGCPREC 3-00, 65 Fed. Reg. 33422 (2000); 38 U.S.C.A. § 5110(g) (West 2002). Those amendments apply to applications received by VA on or after October 23, 2008, such as is the case with this appeal. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, which are deep and nonlinear. Scars in an area or areas exceeding 6 square inches but less than 12 square inches are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches but less than 72 square inches are rated 20 percent disabling. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, which are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 square centimeters) or greater, are rated a maximum 10 percent disabling. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are painful or unstable. A 20 percent evaluation is assigned for three or four scars that are painful or unstable. Finally, Diagnostic Code 7805 provides that scars be rated based other appropriate diagnostic codes. In this case, the Veteran does not have scarring meeting the measurement requirements of Diagnostic Code 7801 or 7802. While the Veteran's scar area has been described as painful, such manifestations have already been considered and compensated under Diagnostic Code 7301, providing the basis for the currently assigned 10 percent evaluation. Therefore, to assign a separate rating under Diagnostic Code 7804 would be tantamount to pyramiding. 38 C.F.R. § 4.14. Finally, Diagnostic Code 7805 provides that scars be rated based other appropriate diagnostic codes and, in the instant case, the Veteran's right inguinal hernia is already evaluated under Diagnostic Codes 7338, regarding inguinal hernias, and 7301, pertaining to adhesions of the peritoneum. The Veteran maintains that right leg neurological symptomatology is a manifestation of his right inguinal hernia. In this regard, the March 2012 VA examiner was requested to identify the nature and severity of any and all neurological impairment or other symptom(s) attributable to the Veteran's right inguinal hernia. However, when addressing any other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran's hernia, the examiner noted only pain or strain within the surgical scar area of the inguinal canal. Moreover, the remainder of the record is negative for neurological impairment of the right leg related to the Veteran's hernia. Furthermore, while the Veteran testified that he had been informed by his physician that the scar tissue associated with his hernia was affecting a nerve, such claim is not borne out by the medical evidence. In this regard, records dated during the appeal period fail to note such a statement. Moreover, while the Veteran himself has contended that his hernia results in neurological impairment of the right leg, the Board finds that he is not competent as a layperson to render such an opinion. In this regard, the question of causation of a neurological impairment as a result of scar tissue involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, this issue may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To summarize, the evidence shows that the Veteran's service-connected right inguinal hernia has not been manifested by any actual evidence of hernia during the appeal period, and has instead been evaluated by analogy to peritoneal adhesions, which contemplate and compensate the Veteran's primary complaints and manifestations of pain the abdomen and groin area, particularly with activity. Having reviewed applicable rating criteria and the evidentiary record, the Board is unable to find a basis for a rating in excess of 10 percent for right inguinal hernia, or any basis for a separate evaluation. Accordingly, the criteria for an evaluation in excess of 10 percent have not met for any portion of the appeal period and the claim must be denied. See Hart, supra. As will be explained in the remand, the Veteran has specifically requested consideration of his claim under the provisions of 38 C.F.R. § 3.321 (b)(1), pertaining to the assignment of an extra-schedular evaluation. As the AOJ has not yet considered such, this aspect of his claim is being remanded. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran indicated in hearing testimony presented in February 2011 that he had established his own business. Moreover, the March 2012 VA examiner found that, while he was unsure whether the Veteran would be able to sustain employment in a labor-intensive work environment, the condition did not prohibit sedentary types of employment. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his right inguinal hernia. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 10 percent for service-connected right inguinal hernia is denied. REMAND A remand is required in conjunction with the issue of entitlement to an extra-schedular evaluation for right inguinal hernia under 38 C.F.R. § 3.321(b)(1). In this regard, the Board recognizes that the Veteran and the record refer to the impact of right inguinal hernia on his work functioning. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In the February 2012 Remand, it was pointed out that the Veteran had argued that he was entitled to an extra-schedular evaluation for his right inguinal hernia. In that remand, the Board specifically requested that upon readjudication, the AOJ consider the issue of whether an extra-schedular evaluation was warranted for the Veteran's right inguinal hernia. A review of the October 2012 supplemental statement of the case reflects no such consideration. The Court has held that AOJ compliance with a remand is not discretionary, and that if the AOJ fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As such, on remand, the AOJ should readjudicated the issue of entitlement to an extra-schedular rating for service-connected right inguinal hernia under 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED for the following action: Adjudicate the issue of entitlement to extra-schedular consideration for service-connected right inguinal hernia pursuant to 38 C.F.R. §§ 3.321(b)(1), in light of all pertinent evidence and legal authority. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs