Citation Nr: 1308435 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-05 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right hip disability, status-post right hip replacement. 2. Entitlement to a disability rating in excess of 10 percent for residuals of a left inguinal herniorrhaphy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to January 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2007 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina, and Cleveland, Ohio, respectively. Jurisdiction of the Veteran's claims file is currently at the Atlanta, Georgia RO. In the July 2007 rating decision, an increased rating for his left inguinal herniorrhaphy was denied. In the February 2010 rating decision, the RO declined to reopen the Veteran's previously denied claim of entitlement to service connection for a right hip disability. In the February 2009 and February 2010 substantive appeals, the Veteran indicated that he wished to testify at a hearing before a Veterans Law Judge at the local regional office. In January 2012, the Veteran withdrew his request and, since that time, has not requested another opportunity to testify before the Board. 38 C.F.R. § 20.704 (2012). The Veteran's case was most recently remanded by the Board in May 2012 for further development. In addition to the claims currently before the Board, the issues of service connection for hearing loss and tinnitus were also the subjects of the remand. During the pendency of the appeal in a December 2012 rating decision, the Appeals Management Center awarded service connection for the Veteran's claimed bilateral hearing loss and tinnitus. As such, those grants of service connection constituted a full grant of benefits and the bilateral hearing loss and tinnitus issues are no long on appeal. The May 2012 Board decision also reopened the Veteran's claim of service connection for his right hip disability. With respect to the remaining issues, the requested action was taken, and there has been substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268 (1998), see also Dyment v. West, 13 Vet. App. 141 (1999). In addition to a paper claims file, the Veteran also has an electronic file known as a Virtual VA file. The Board has reviewed both the paper and electronic files prior to reaching this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's claimed right hip disability was not first manifest in service, arthritis did not manifest within one year thereafter, and the disability has not otherwise been shown to be etiologically related to service. 2. The Veteran left inguinal hernia is not recurrent, nor is it shown to be not well supported by truss or readily reducible. 3. The Veteran has neuritis of the ilioinguinal nerve that approximates severe paralysis of the ilioinguinal nerve, which is due to his history of left inguinal hernia repair. CONCLUSIONS OF LAW 1. A right hip disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for a disability rating in excess of 10 percent for service-connected residuals of left inguinal hernia repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.114, Diagnostic Code 7338 (2012). 3. The criteria for a separate rating of 10 percent for neuritis of the ilioinguinal nerve due to left inguinal hernia repair have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.124a, Diagnostic Code 8630 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran received 38 C.F.R. § 3.159(b) notice in a March 2007 letter, issued prior to the appealed July 2007 rating decision, and notice in October 2009 and December 2009 letters prior to the appealed February 2010 rating decision. In these letters, the Veteran was also notified of VA's practices in assigning disability evaluations and effective dates for service-connected disabilities pursuant to Dingess/Hartman. There are accordingly no deficiencies of notification in this case. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4) (2012). In this case, VA and private medical records concerning the Veteran's right hip and hernia disabilities have been obtained, and there is no indication of additional relevant treatment records concerning this disability. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment described by the Veteran. The Veteran was also most recently afforded fully comprehensive VA examinations in May 2012 to provide a current diagnosis and determine the etiology of his right hip disability and assess the current severity of his left inguinal herniorrhaphy. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claims. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his residuals of left inguinal herniorrhaphy since he was last examined in May 2012. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection The Veteran essentially contends that his in-service fall onto his right hip caused a right hip disability that eventually led to a right hip replacement. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to competency, 38 C.F.R. § 3.159(a)(2) reflects that "competent lay evidence" means any evidence not requiring that the proponent have specialized education training or experience; lay evidence is competent if provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Id. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). A review of the Veteran's service treatment records (STRs), shows no evidence of any hip disability. Service separation medical examination is negative for any right hip disability or complaints related to a fall on his right hip. In addition, musculoskeletal examination was within normal limits. The STRs are devoid of any treatment for a fall onto the right hip or any right hip injury associated with his left inguinal hernia. Medical examinations for Naval Reserve purposes in November 1960, May 1964, and May 1967 showed no right hip disability, nor did the Veteran report any injury to the right hip during his active service. The only disability noted from his period of active duty was left inguinal herniorrhaphy, without complications. In March 1993, the Veteran underwent a right hip replacement due to advanced arthritis in the right hip. In a statement dated in January 1994 from the Veteran's wife, she indicated that she and the Veteran have known each other since November 1957. She recalled that since that time, he has walked with a limp that has progressively worsened over the years. She noticed that the heel of his right shoe always wore down on the right outer edge and his footprint always pointed to the right. She did not know the reason why. In a January 1994 statement, the Veteran indicated that his surgeon told him that his right hip deteriorated due to some bad injury. The Veteran advised that the only trauma he had to the right hip area was when he fell from the top of a boiler to the steel deck below, following which he underwent an left inguinal herniorrhaphy Treatment records dated around the time of the Veteran's right hip replacement did not reflect his now-reported history of falling on his right hip during service. In a March 1994 VA examination for his left inguinal herniorrhaphy residuals, the Veteran reported his history of being aboard ship, loosening a bolt, and feeling pulling and tightness in his left groin area. He was immediately transferred to the local medical center for surgery. He did not report any fall or concurrent right hip injury to the examiner. During a March 1998 hearing before a Veterans Law Judge, the Veteran denied seeking any treatment in service for his right hip, nor did he know at the time that he had hurt his right hip. He also indicated that the onset of his right hip pain was a couple years prior to seeking treatment and undergoing his right hip replacement. The Veteran's representative asked why his right footprints in the sand were turned off to the side. The Veteran responded that he did not have pain then, but indicated that was just the way he walked. He further indicated that his right leg has always been shorter than his left side, but it was not noticeable prior to his military service. He stated that he has limped on his right side since service, but initially did not experience pain on the right side. In a July 2008 statement from the Veteran's spouse, she again contended that she recalled the Veteran having a limp since 1957 when they met. In this statement, however, she recalled the Veteran telling her that he fell 10 feet on his right side while doing repairs to the boiler on the ship. She stated that the fall was to a steel deck of the ship. In May 2012, the Veteran was afforded another VA examination of the right hip, at which time his in-service fall was reported. The Veteran could not remember the specific degree or nature of any symptoms involving his right lower extremity following his fall up until a few years prior to his 1993 right hip replacement. Since the replacement, he had undergone multiple treatments for his right hip problems, including additional surgery. Following review of the claims file, interview of the Veteran, and physical examination, the examiner diagnosed the Veteran as having degenerative joint disease of the right hip, status-post joint replacement with residual complications. The examiner opined that the Veteran's current right hip disability was less likely than not related to his military service, and it was not shown within the first post-service year or was otherwise related to his military service. The examiner considered the Veteran's lay testimony regarding his in-service fall, but found that it was medically unlikely that such a fall would have resulted in his current right hip disability and its complications. The examiner pointed to medical literature, the Veteran's documented history of degenerative arthritis involving multiple uninjured joints, as well as the September 1954 negative x-ray report. In addition, the examiner noted the Veteran's own reports of no musculoskeletal problems at service discharge and reserve examinations, as well as objective testing showing no musculoskeletal problems, as rationale for his negative opinion. The examiner also indicated that if the Veteran did incur this fall during service, the discharge and later reserve physical examinations showed that the injury resolved spontaneously and without residuals. Moreover, the examiner found it significant that the Veteran did not have any additional problems with his right hip until just prior to his 1993 replacement. The examiner found the degenerative arthritis of the hip to be a separate and unrelated process from any symptoms the Veteran experienced due to the alleged fall in service. There is no question that the Veteran has a current right hip disability-including degenerative joint disease of the right hip, status-post right hip replacement with additional complications. Thus, the crucial inquiry before the Board is whether the Veteran's current right hip disability is attributed to an event, disease, or injury incurred during active service. For the reasons stated below, the Board finds that it is not. Upon complete review of the record, the Board finds that the competent and credible evidence does not show that the Veteran's current right hip disability was caused or worsened by his military service. Even assuming he fell 10 feet on the steel deck during service as described by the Veteran, the preponderance of the evidence is against a finding that the Veteran had a residual right hip disability leading to his eventual right hip replacement. Further, the preponderance of the evidence does not show that the Veteran was diagnosed as having or treated for arthritis of the right hip within his first post-service year to warrant service connection on a presumptive basis. See 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no competent and credible opinion linking the Veteran's current right hip disability to an event, injury, or disease during service. The May 2012 VA examination report includes a thorough opinion finding no link between the Veteran's current right hip disability and his alleged in-service fall. The examiner's main rationale for his opinion was that any injury to his right hip would not have been severe enough to cause the current right hip disability as he had normal physical examinations at separation and for the Naval Reserve in the subsequent years. Given this rationale and the fact that the both the Veteran's claims file and reported history were considered by the examiner, the Board finds the May 2012 opinion to be of very high probative value. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board may favor the opinion of a competent medical professional so long as an adequate statement of reasons and bases is provided). The Board appreciates the assertions made by the Veteran and his spouse that his limp following service was indicative of the arthritis in the right hip joint that ultimately led to his right hip replacement. The Board finds, however, that the Veteran and his spouse are not competent to so report. Although hip pain and limited movement are matters that can be observed and described by a lay person, a diagnosis of arthritis is not. In addition, the Board finds the statements regarding continuity of symptomatology described by the Veteran and his spouse to lack credibility. At no time during service did the Veteran report any right hip problems, and admittedly he testified that he never noticed any right hip problems until the early-1990s, which just prior to his right hip replacement surgery. He also testified that he never sought treatment in service for his alleged right hip injury, and never had pain in the hip until the 1990s. Additionally, the Naval Reserve physicals noted normal musculoskeletal examinations, and the Veteran reported the same. In addition, the Veteran's spouse indicated in her January 1994 statement that she did not know what caused her husband to limp/favor the right side, but in 2008, she believed it was due to an in-service fall from 10 feet to a steel deck. Again, the evidence of record shows that the Veteran was first diagnosed as having right hip problems in the early-1990s, and he did not report any in-service injury in conjunction with his treatment. That having been noted, the lay contentions of the Veteran and his spouse are of far less probative value than the May 2012 VA opinion. First, although the Veteran and his spouse are competent to observe limping and the Veteran is competent to describe his pain, they are not competent to diagnose arthritis of a right hip disability, nor can they identify the date of onset of such disability. The finding of such disability requires x-ray evidence, and the Veteran has not been shown to possess training or credentials in radiology or medicine. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (finding that "a layperson is generally not capable of opining on matters requiring medical knowledge"). Second, the May 2012 opinion is more consistent with the evidence of record, insofar as there were no complaints or treatment for right hip problems in service or for over three decades thereafter. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (noting that evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Overall, the Board finds that the preponderance of the evidence is strongly against the conclusion that the Veteran's claimed right hip disability is in any way etiologically related to service. Accordingly, the claim for service connection for that disability must be denied. VA's benefit-of-the-doubt doctrine is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally, Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's left inguinal herniorrhaphy has been rated as 10 percent disabling under Diagnostic Code 7338, which provides that small inguinal hernia, reducible, or without true hernia protrusion, is rated noncompensably (0 percent) disabling. Inguinal hernia that is not operated, but is remediable, is rated noncompensably (0 percent) disabling. Postoperative recurrent inguinal hernia, readily reducible, well supported by truss or belt, is rated 10 percent disabling. Small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, is rated 30 percent disabling. Large inguinal hernia, postoperative recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable, is rated 60 percent disabling. Diagnostic Code 8530 provides a zero percent disability rating for mild or moderate paralysis of the ilioinguinal nerve and a 10 percent disability rating for severe to complete paralysis of the ilioinguinal nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8530. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. Diagnostic Code 8630 refers to neuritis involving the ilioinguinal nerve. Neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, and is rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.124a. Diagnostic Code 8730 refers to neuralgia involving the ilioinguinal nerve. Neuralgia is characterized by dull and intermittent pain, of typical distribution so as to identify the nerve, and is also rated on the same scale provided for injury of the nerve involved, with a maximum equal to moderate, incomplete, paralysis. Id. By way of background, service connection for left inguinal herniorrhaphy residuals was originally awarded in an April 1994 rating decision, at which time a noncompensable rating was assigned. In June 2003, his rating was increased to 10 percent. The Veteran filed his most recent request for an increased rating in December 2006 contending that his left inguinal herniorrhaphy symptoms had worsened. Following his request for an increased rating, the Veteran was afforded a fee-basis VA examination of his left inguinal herniorrhaphy residuals. The Veteran's current symptom includes pulling pain when getting up and down. Physical examination of the Veteran revealed no inguinal, ventral, or femoral hernia. The examiner continued the Veteran's diagnosis of status-post left inguinal herniorrhaphy, noting no objective findings of a hernia on examination. The Veteran maintained that he continued to have pain in the left inguinal hernia area. In a February 2008 VA treatment note, the treating professional could not feel a left hernia, but advised that the Veteran's pain was most likely from an entrapped nerve (ilioinguinal). In a June 2008 post-injection VA treatment note, the treating surgeon indicated that the Veteran likely had ilioinguinal nerve entrapment on the right, and there was no evidence of an inguinal hernia on the left. The Veteran was afforded another VA examination of the left inguinal region, at which time he described sharp pain and discomfort in the left groin. He reported currently taking hydrocodone for hip and hernia pain. Physical examination of the left hernia scar showed a linear scar that is 3 cm x 1 cm. The scar was not painful on examination, and there was no skin breakdown. The examiner advised that the scar was deep with underlying tissue damage. There was no inflammation, edema, keloid formation, or disfigurement. There was no limitation of function or motion due to the scar. The examiner found no left inguinal hernia on physical examination, but the examiner found his condition was active due to the subjective pain in the left groin and left groin area. The Veteran underwent another VA examination of the left groin area in May 2012, at which time the examiner found that the Veteran had a history of left inguinal herniorrhaphy with additional worsening of pain. At that time, he reported no significant problems. Physical examination revealed no current left inguinal hernia, nor was there any indication that the Veteran requires the use of a support belt. The examiner found a residual scar in the left inguinal area that was less than 39 square centimeters, but it was barely visible and without functional residuals or limiting effects. The Veteran has continued to undergo treatment at the VA Medical Center for his left inguinal area complaints. He consistently reported that he had significant difficulty lifting his leg or sitting for long periods of time due to the left inguinal pain he experienced. Upon careful review of the evidence of record and in consideration of the Veteran's lay testimony of his current symptoms, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 7338 for his left inguinal herniorrhaphy. During the entire timeframe on appeal, the Veteran has not been shown to have an inguinal hernia on examination. Although the Veteran has a history of herniorrhaphy, there is no evidence of record to show any indication the Veteran used a truss or a belt to support the herniated area. As such, the Veteran's left inguinal herniorrhaphy residuals do not even meet the criteria for a 10 percent rating under Diagnostic Code 7338. Thus, the 10 percent rating is generous considering the symptomatology described in the relevant VA examinations and treatment records. The Board finds, however, that it would not be pyramiding to assign the Veteran a separate, 10 percent rating for severe paralysis of the ilioinguinal nerve based upon the diagnosis of entrapped nerve with resultant pain under Diagnostic Code 8560. The evidence of record shows a deep scar, adherent to the underlying tissue from his left inguinal herniorrhaphy that is likely to blame for his left inguinal pain. The Veteran has continued to report significant pain and discomfort with the "pulling" sensation in his left inguinal area and this makes it nearly impossible for him to lift his leg or sit for long periods of time. He has regularly been treated with prescription pain medications and injections for treatment without much success. This separate award is not pyramiding inasmuch as the criteria are based upon nerve involvement and not the presence of a current hernia. The Board notes that 10 percent is the highest rating under this Diagnostic Code. Additional Considerations The Board has considered whether to assign staged ratings for his left inguinal herniorrhaphy residuals pursuant to Hart, but finds that under the circumstances, staged ratings are not warranted. The Board has also considered whether this case, or any component thereof, should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the service-connected disability are contemplated by the schedular criteria. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. The United States Court of Appeals for Veterans Claims has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation; there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case the Veteran has not asserted, and the evidence of record does not show, that his residuals of left inguinal herniorrhaphy alone render him unemployable. Accordingly, a claim for TDIU is not raised by this appeal. ORDER Service connection for a right hip disability is denied. A rating in excess of 10 percent for residuals of left inguinal herniorrhaphy residuals is denied. A separate 10 percent rating for severe paralysis of the ilioinguinal nerve is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs