Citation Nr: 1311212 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 08-23 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an increased rating for ilio-inguinal nerve entrapment, currently evaluated as 10 percent disabling. 2. Entitlement to a compensable rating for status post left inguinal hernia repair. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to November 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In February 2012, the Board issued a decision denying the Veteran's claims for an increased rating for ilio-inguinal nerve entrapment and a compensable rating for inguinal hernia. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2012, the Court granted a Joint Motion for Remand and vacated the Board's decision for compliance with the instructions in the Joint Motion. The Veteran in October 2012 requested a hearing, but in November 2012, through his attorney, the Veteran withdrew that request in writing. Following the issuance of the supplemental statement of the case in July 2012, the Veteran's attorney submitted additional evidence in support of his claims in November 2012 and in writing, simultaneously waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The current 10 percent rating is the maximum schedular rating for the ilio-inguinal nerve entrapment manifested by pain. 2. The Veteran's left inguinal hernia is not recurrent. 3. Service connection is in effect for bilateral hearing loss, evaluated as 40 percent disabling; depressive disorder, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; scar, residual of a left herniorrhaphy, evaluated as 10 percent disabling; ilio-inguinal nerve entrapment, evaluated as 10 percent disabling; left orchalgia and epididymitis, evaluated as 10 percent disabling; and status post left inguinal hernia repair, evaluated as noncompensable. 4. The Veteran has a combined rating of 70 percent with a single disability rated at 40 percent. 5. The competent evidence shows that the Veteran's service-connected disabilities, in combination, prevent him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of an evaluation in excess of 10 percent for ilio-inguinal nerve entrapment. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8530 (2012). 2. The criteria for a compensable evaluation for status post left inguinal hernia repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7338 (2012). 3. The criteria for entitlement to total disability rating based upon individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in July 2007. The notice included the type of evidence needed to substantiate the claims for increase, namely, evidence that the symptoms had increased. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the assignment of an effective date and/or disability rating in the event of award of the benefit sought. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, records from the Social Security Administration, records from private medical caregivers, including a report by a vocational rehabilitation expert dated in November 2012, and provided the Veteran VA examinations in September 2007, June 2008, and June 2012. The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disabilities. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Analysis Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. General Rating Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Claim for a Rating Higher than 10 percent for Ilio-inguinal Nerve Entrapment and claim for an Initial Compensable Rating for Status Post Left Inguinal Hernia Repair A maximum 60 percent schedular evaluation may be assigned for a large inguinal hernia, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. When small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, a 30 percent rating is for assignment. When postoperative recurrent, readily reducible and well supported by truss or belt, a 10 percent evaluation may be assigned. A noncompensable evaluation is assignable when not operated, but remediable or when small, reducible, or without true hernia protrusion. Note: Add 10 percent for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. 38 C.F.R. § 4.114, Diagnostic Code 7338. As for nerve entrapment, a 10 percent evaluation may be assigned for severe to complete paralysis of the ilio-inguinal nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8530. This is the highest rating available under the Ratings Schedule. By way of background, the Veteran underwent surgical repair for the left inguinal hernia in August 2001. As pain continued, to attempt to alleviate his symptoms, he underwent surgical release of the ilio-inguinal nerve due to nerve entrapment in June 2003 and a left epididymectomy, in December 2003. The Board also notes that Social Security Administration records received by VA in September 2008 indicate the Veteran sought benefits in 1997 for mood disorder/depression and for his back and neck disabilities. The application, medical records, and evaluations received by the Social Security Administration therefore predate the current claims for increased ratings and furthermore do not include inguinal hernia, or nerve entrapment of the ilio-inguinal nerve as the Veteran applied for benefits before he sought treatment for the inguinal hernia. Turning to the evidence from the relevant time period, when the Veteran was seen in a VA outpatient clinic in May 2007, it was specifically noted, while there was tenderness, there was no visible mass in the inguinal area and no clinical evidence of a hernia. The Veteran complained of pain shooting into his left testicle. It was uncomfortable both standing and sitting down. His caregivers advised him that no surgical intervention would help. The Veteran would have to learn to cope with the pain although a scrotal support device might help. It was noted the nerve entrapment surgery resulted only in superficial numbness and the pain the Veteran described appeared to originate deep inside the inguinal canal. The diagnosis was neuropathic pain secondary to scarring and diabetes, but no recurrent hernia was found. In a statement by the Veteran dated in August 2007, he stated the inguinal hernia pain limited his movement and affected the way he sits as that increased his pain. Pain increased when he bent over because it put pressure in the left inguinal area. That same month, the Veteran's regular VA medical provider noted the Veteran had constant pain and it interfered with his daily activities and quality of life. The Veteran did not get any significant relief from any general modalities. In a VA examination in September 2007, it was noted the Veteran has not worked since 1991 and he stated he received Social Security Administration benefits due to a back injury with laminectomy surgery. He had a high school degree. The Veteran asserted he could not work due to his inguinal hernia disability. He placed the pain at 7/10 but that was constant. The examiner noted the pain caused difficulties in activities of daily living, namely stairs, walking, and sitting around for long periods of time. He experienced numbness only around the surgical site. The examiner concluded the constant pain meant the Veteran would find it difficult with any working condition, even non-laborious conditions. The examiner, however, noted that with all of the Veteran's problems, even back pain, the Veteran could work in a sedentary environment. VA outpatient treatment records disclose that the Veteran was seen in May 2008 and reported increased pain in the left groin. No hernias were noted on examination. In August 2008, the Veteran was seen by physical therapy as he now had right groin complaints such as experiencing pain when he put on his trousers. His history with inguinal hernia symptoms and treatment was noted but there were no specific notations of current symptoms or findings regarding the inguinal hernia disability. In a statement by the Veteran dated in January 2009, the Veteran reported that driving and sitting puts pressure upon the inguinal hernia site with resulting pain. Lifting and walking also causes pain. Chores overwhelm him. The Veteran also underwent a VA examination in June 2012 regarding his service connected inguinal hernia disabilities. As to the inguinal hernia itself, the Veteran has pain in the left testicle in the left lateral and superior areas and also described left testicle throbbing. He continuously takes medication for the pain. He has not felt or seen any hernia, but he has residual chronic pain, 6/10. Upon examination, a hernia was not detected on either side. The Veteran was tender to palpitation along the testicular margin at the site of the epididymectomy (the left lateral and superior area of the testes). The examiner also stated that scars were not detectable and could not be found even with guidance from the Veteran. She concluded they have faded into the skin creases and his pain does not come from the scars. No tenderness was elicited from the surgical area. The pain the Veteran feels was reproduced with deep digital palpitation of the inguinal ring with the Veteran in a standing position and with deep palpitation of the left anterior superior testes. In the examiner's opinion, the Veteran's hernia condition or the scars had no impact on his ability to work as there is no currently detectable hernia. The pain he described was attributed to the chronic orchalgia disability. As to the left ilio-inguinal nerve entrapment, the VA medical examiner diagnosed a mild, incomplete paralysis of the ilio-inguinal nerve. As noted, the pain the Veteran described and diagramed was in the upper lateral aspect of the testes, associated with the left epididymectomy and mild groin pain in the inguinal crease, although the examiner was not able to reproduce the mild groin pain in the inguinal crease. As to the main area of pain, the Veteran reported chronic pain causes him to adjust his position in a chair frequently and at a partially reclined area as sitting upright at 90 degrees creates more pressure and pain. The examiner noted employment would be limited from positions requiring prolonged walking, standing, lifting, squatting, or kneeling. Sedentary employment such as a desk job where the Veteran was allowed to adjust his position and stretch at adequate intervals would not be precluded from his disability. The diagnosis was left orchalgia and epididymitis status post epididymectomy with loss of use of testicle associated with left inguinal hernia, status post repair. As noted from above, VA examinations have not demonstrated a postoperative, recurrent, readily reducible hernia, which is the standard for a compensable rating. Further, although there was a suggestion by one physician the Veteran wear scrotal support, there is no evidence of the need for a truss or belt. Based on the facts set forth above, the Board finds that in the absence of evidence of recurrence of a left hernia during the appeal period, the criteria for 10 percent rating under Diagnostic Code 7338 have not been met. Further, the disability picture has been stable since the Veteran filed his claim in July 2007 and the Board finds no material difference or change in the disability. Finally, the Board has considered the application of other diagnostic codes in order to afford the Veteran a higher or compensable rating but does not find any raised by the medical evidence. To the extent that the severity of the Veteran's symptoms are a manifestation of the Veteran's chronic orchalgia disability, the Board notes that disability is also service connected and rated separately, but the 10 percent rating for that disability is not before the Board at this time. As noted, the Veteran also seeks a higher rating than the 10 percent rating assigned for nerve entrapment of the ilio-inguinal nerve. Under Diagnostic Code 8530, this is the highest rating available under the Ratings Schedule for a disability of the ilio-inguinal nerve. Therefore, the Veteran is not entitled to a higher rating for his ilio-inguinal nerve entrapment disability. The Board recognizes that the evidence supporting the Veteran's claim for a higher rating for nerve entrapment and a compensable rating for the residuals of his left inguinal hernia includes his statements regarding the severity of his inguinal hernia, particularly pain. The Board has also considered the Veteran's lay statements that his disabilities are worse than currently evaluated. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. That involves specialized knowledge or training in identifying injuries and diseases of the nerves and inguinal area. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Such competent evidence concerning the nature and extent of the Veteran's left hernia disability or nerve disability have been provided by the medical personnel who have examined him during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. As the assigned noncompensable evaluation reflects the actual degree of impairment shown since the date the Veteran filed his claim for an increased rating for ilio-inguinal nerve entrapment and for a compensable rating for residuals of an inguinal hernia repair, there is no basis for staged ratings for this claim. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service- connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). In this case there are no exceptional or unusual factors with regard to the Veteran's disability. In this regard, the Board notes that the Veteran has not had frequent periods of hospitalization for either disability at issue. Furthermore, the Board acknowledges that the Veteran is currently unemployed, although the Board also notes he has not worked since a back injury, which predates the inguinal hernia surgery and subsequent residuals. While there is evidence that some physicians have concluded that the disabilities at issue interfere with his ability to work, the degree of such impairment is already contemplated by the applicable schedular criteria so that consideration of an extraschedular rating is not shown to be necessary. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating, itself, is recognition that industrial capabilities are impaired). The VA examiners specifically stated the disabilities do not prevent him from doing sedentary work with accomadations. Still, the Board also recognizes that the above evidence supports that the Veteran's service-connected residuals of a left hernia repair and entrapment of the ilio-inguinal nerve have resulted in constant pain that impacts the Veteran's ability to function. Pain is specifically referenced in 38 C.F.R. §§ 4.123 and 4.124, which refer to neuritis characterized by constant pain at times excruciating and dull and intermittent distributed pain, and 38 C.F.R. § 4.120 provides that disability in the field of neurological conditions is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. The Veteran's left inguinal hernia is asymptomatic with no recurrence. The Veteran is rated at the maximum schedular rating for neuritis or neuralgia disabilities of the ilio-inguinal nerve, which as noted with nerve disabilties. There is nothing unusual in the Veteran's claims that render the rating schedule as inadequate to address his disabilities. The Veteran also does not offer any explanation or argument to explain how the ratings assigned are inadequate to describe the nerve entrapment and residuals of hernia repair symptoms and their effect upon his daily life. The evidence before the Board also does not establish any functional impairment that would not be covered or contemplated by the current 10 percent rating for nerve entrapment so as to warrant referral for consideration of an extraschedular evaluation. As noted, the schedular criteria for nerve disabilities contemplate pain. As noted above, an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In short, his disability picture is contemplated by the rating schedule under Diagnostic Codes 7338 and 8530 and the application of 38 C.F.R. §§ 4.120, 4.123, 4.124, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. Claim for Total Disability based upon Individual Unemployability (TDIU) The Veteran contends that he is entitled to TDIU because his service-connected disabilities prevent him from obtaining and maintaining gainful employment. The Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has expressly raised a separate claim that his service-connected disabilities render him totally unemployable from the claims for higher ratings for nerve entrapment and the inguinal hernia repair. A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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 ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524. 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability). The word "substantially" suggests an intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Service connection is in effect for bilateral hearing loss, evaluated as 40 percent disabling; depressive disorder, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; scar, residual of a left herniorrhaphy, evaluated as 10 percent disabling; ilio-inguinal nerve entrapment, evaluated as 10 percent disabling; left orchalgia and epididymitis, evaluated as 10 percent disabling; and status post left inguinal hernia repair, evaluated as noncompensable. The combined schedular rating is 70 percent. Evidence in the file indicates that the Veteran is right handed and has a high school diploma. The Board incorporates by reference in its analysis for the TDIU claim the evidence noted in the Veteran's claims for an increased rating for nerve entrapment and for a compensable rating for hernia repair. Although predating his claim for TDIU, the Board notes that the Veteran has been seen for mental health disabilities at least since November 1999, including depression, which resulted in low self esteem, worry, irritability, sleep problems, and concentration problems. In April 2002, he asked his mental health provider if he could work. The VA physician replied that he did not think the Veteran could successfully seek and maintain sustained competitive employment by his depressive condition alone. In his claim for TDIU dated in August 2007, the Veteran stated his inguinal hernia surgeries have been very disabling for him. He stated the inguinal hernia pain limited his movement and affected the way he sits as that increased his pain. Pain increased when he bent over because it put pressure in the left inguinal area. He also stated standing, lifting, walking, and pushing or pulling objects is also painful. He asserted suffering from mood disorder and depression as a direct result of his left inguinal and left testicle pain. Following a VA audiometric examination in September 2007, the diagnosis was moderately severe to severe bilateral sensorineural hearing loss. The examiner commented that the Veteran's hearing loss and tinnitus did not prevent him from obtaining and maintaining gainful employment. She stated they might create increased difficulty in some employment settings, but added the hearing loss does not prevent gainful employment. As noted above, the Veteran was afforded a VA genitourinary examination in September 2007. The examiner noted the Veteran had not worked since 1991 because of a nonservice-connected back disability. Nevertheless, he stated the Veteran appeared to be in constant pain from the left inguinal hernia repair with secondary conditions and that he would find it difficult in any working condition, even a non-laborious condition. He added the Veteran's other nonservice-connected conditions would have no effect on work. The examiner who conducted the VA genitourinary examination later provided in an addendum an opinion regarding the Veteran's employment. After reviewing the records, the examiner stated the chronic pain might interfere with some employment, but would not exclude him from substantially gainful employment. He noted the current treatment was not of a level that would interfere with employment, and that all service-connected disabilities do not exclude him from substantially gainful employment. In March 2008, the Veteran's primary VA medical provider noted that chronic pain can exacerbate depression and, as the Veteran has continued to experience chronic pain as a result of his inguinal hernia surgery, it is a contributing factor to his depression. In May 2008 a VA opinion noted the conclusions of previous physicians that chronic pain of the Veteran resulted in exacerbation of depression. The reviewing physician concluded the Veteran has chronic pain syndrome resulting from his left hernia surgeries. In June 2008, the Veteran underwent a VA mental health examination. In addition to his inguinal hernia problems, he also suffered from diabetes, cardiac problems, including heart surgery in 1993, two prostate surgeries, repair of the left knee meniscus, and surgeries on both shoulders with a second right shoulder surgery planned. He also described his back problems. As for his mental health symptoms, the Veteran described anxiety and felt everything was out of control. He felt he was under a lot of stress. His symptoms make him irritable and explosive to the point he is afraid he will hurt someone. He does not like being around others and has left restaurants. The Veteran also described sleep problems. In the examination, the examiner noted the difficulty the Veteran had with mobility with difficulty transitioning from sitting to standing. The Veteran had minor motor agitation with hand-wringing and some periodic bouncing of the leg. He reported some suicidal ideation at times when he felt completely overwhelmed, but denied any current suicidal or homicidal ideation. Memory was described as excellent for remote events in time, but the Veteran demonstrated problems with recent memory. The examiner diagnosed depressive disorder due to chronic pain syndrome. He concluded that the Veteran's depression predated his inguinal hernia problems but they exacerbated the depression condition. (The Board also notes the examiner diagnosed posttraumatic stress disorder due to childhood traumatic events). The examiner noted the Veteran's mental health difficulties cause significant deficiencies in his global assessment of functioning, with a GAF in the 45-50 range. The examiner stated the Veteran has suicidal ideation, no friends, and is unable to work. The examiner also stated the exacerbation caused by the chronic pain syndrome contributes significantly to his level of functioning. Multiple sources of pain other than the pain from the inguinal hernia area, however, complicated the employability picture. The examiner concluded there was an occasional decrease in efficiency and intermittent periods of inability to perform tasks. The mood disorder secondary to the chronic pain syndrome would cause a minor disruption, but when the other mental health related problems are taken into consideration, there is a significant decrease in ability to work and perform constructive activities. The examiner also concluded that activities commonly associated with employment would exacerbate his perception of pain and depression. VA outpatient treatment records reveal that the Veteran was seen in the mental health clinic in January 2009 for follow-up of major depression. The psychiatrist stated he thought the major depression alone was sufficient to make it unlikely the Veteran would be able to seek and maintain sustained competitive employment. The physician noted the Veteran is chronically anxious, has poor attention and concentration, mood that is chronically dysphoric, and his energy level is low except with the restlessness that occurs with anxiety. The treating psychiatrist also concluded the Veteran had a poor ability to tolerate the environment of the workplace. The Veteran would not be able to tolerate others and would not tolerate supervision without an adverse impact on mood and ability to perform sequential operations. Physically, the Veteran had a limited capacity to sit in one place, stand, or walk long distances. Also in January 2008, the Veteran stated that he has difficulty remembering what he reads and staying focused on any given instructions. He does not relate to others in the workplace and tries to avoid other people. In driving, the Veteran reported he gets sleepy and drives all over the road and as he lives in a rural area, he would have to drive at least twenty miles to work. Although not clear, it appears the Veteran attributes his sleepiness while driving to his medications. Driving also causes pain as does lifting and walking, which drains his energy. The Veteran states that even with hearing aids in both ears, he cannot hear well and hears different words than the actual words people say when talking to him. He believes it would be very hard for him to work with the hearing loss. In April 2009, the treating psychiatrist again stated the Veteran remained quite unable to work. He noted the depression was a bit better, but still quite effectively preventing the Veteran from seeking and maintaining sustained competitive employment. In August 2009, the Veteran stated his medications take to alleviate his depression make him sleepy and light-headed. In April 2012, the Veteran's treating VA psychiatrist concluded that the Veteran is not really remotely employable. He is obsessionally introspective and anxious over every little thing. The psychiatrist could not imagine that the Veteran could focus for more than 20 minutes at a time before he would be internally distracted. The Veteran also worried about his memory and his depression remained symptomatic even with reasonably aggressive medication pharmacotherapy. In June 2012, the Veteran underwent a VA mental health examination regarding the effect his service connected depression disability has upon his employability. The Veteran reported hand tremors that he attributed to his medications but the VA examiner disagreed, noting that he had hand tremors before he started any of the medications. The Veteran described a depressed mood every day, frustration with memory recall, confusion, losing track of a task at hand, frustration with himself, isolation and argumentativeness with others, hopelessness, and fatigue. He also had a loss of energy and sleep disturbance that resulted in sleepiness during the day. He also reported frustration with people because they could not understand or appreciate what his pain and depression feel like to him. Although the Veteran did not ever recall a time when he did not have depression, his chronic pain exacerbates the pain. Everything is a struggle due to physical malfunctioning, pain, and aging. He described pain when he leans forward, sits up straight, and when he walks due to the nerve entrapment. The examiner noted the Veteran repeatedly stood up and walked around the room during the examination. The Veteran reported increased pain if stationary for too long. His depressive symptoms impair his social, familial, and occupational functioning and the symptoms fluctuate based on his level of perceived pain. The examiner concluded the depression disability resulted in occupational and social impairment with reduced reliability and productivity. The examiner concluded the Veteran had a moderate recurrent major depressive disorder without full interepisode recovery. Noting the Veteran also has a diagnosis of PTSD and that the Veteran also used isolation and withdrawal as coping mechanisms, the VA examiner stated it is difficult to ascertain which diagnosis these symptoms related to. She concluded that at the present, his overall functioning is more the result of the depressive symptoms and pain then the PTSD. The examiner stated the depressive symptoms continue to be serious with impaired familial functioning but at this time, it appears the depressive symptoms are unlikely sufficient to warrant a total level of social and occupational functioning and unemployment. The depression, however, appears to be exacerbated by his perception of his level of pain. As such, an exacerbation of depressive symptoms in an occupational setting could impact his ability to maintain gainful employment due to reduced reliability and productivity in the workplace. A VA hearing examination in June 2012 demonstrated that the Veteran's current hearing in the left ear had an average decibel loss of 60 and speech discrimination at 60 percent. The right ear had an average decibel loss of 60 decibels and speech discrimination scores of 72. The Veteran stated his hearing loss impacted his daily life in that he could not hear normal people talking so he cannot follow instructions. The examiner diagnosed a moderate to severe bilateral sensorineural hearing loss. Although his hearing loss makes it difficult to follow conversations in noisy environments, he is able to carry on a conversation in the quiet and while looking at the speaker. Therefore, the VA examiner opined that the Veteran's hearing loss and tinnitus would not interfere with maintaining employment, noting that individuals with severe to total hearing impairment are successfully employed and hearing loss alone should not negatively impact his ability to be gainfully employed. The Veteran also underwent a VA examination in June 2012 regarding his service connected inguinal hernia disabilities. In the examiner's opinion, the Veteran's hernia condition or the scars had no impact on his ability to work as there is no currently detectable hernia. The pain he described was attributed to the chronic orchalgia disability. The Veteran has pain, 6/10, in the left testicle in the left lateral and superior areas and also described left testicle throbbing. He continuously takes medication for the pain. The pain the Veteran feels was reproduced with deep digital palpitation of the inguinal ring with the Veteran in a standing position and with deep palpitation of the left anterior superior testes. The Veteran reported the main area of chronic pain causes him to adjust his position in a chair frequently and at a partially reclined area as sitting upright at 90 degrees creates more pressure and pain. The examiner noted employment would be limited from positions requiring prolonged walking, standing, lifting, squatting, or kneeling. Sedentary employment such as a desk job where the Veteran was allowed to adjust his position and stretch at adequate intervals would not be precluded from his disability. In November 2012, the Veteran submitted a report from D. P., a vocational expert, who reviewed records and interviewed the Veteran. He acknowledged the Veteran had other non-service connected medical conditions, but also service-connected disabilities and limited his opinions and conclusions to the service-connected disabilities. In service, the Veteran worked in airplane structural mechanics. After service, he worked as a bricklayer, which the Veteran did not need to listen for instructions as he could learn by watching and then doing. Nevertheless, he was unable to keep up with the pace of others and he indicated hearing was still an issue in his effectiveness at work. He then performed manual work doing warehouse and general cleaning. He stopped this work due to non-service related medical conditions. The vocational expert noted the conclusion that the Veteran could perform sedentary work with accommodations but also noted that the Veteran does not possess transferable skills from his past employment that would qualify him to obtain sedentary level employment. Further, hearing impaired individuals require accommodation as well and the success of retaining employment in the Veteran's case is an issue because in both the bricklaying and warehouse positions, his hearing impairment became an issue. Taking the service connected disabilities together the vocational expert concluded that it is at least as likely than not that the Veteran's education, prior work history, and residual limitations stemming from symptoms related to moderate to severe hearing loss, tinnitus, associated pain form the inguinal hernia, and major depressive disorder, the vocational expert concluded that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. The expert stated even in the absence of his non-service connected disabilities, the Veteran would still be precluded from gainful employment due to the service connected disabilities. The Board finds that the evidence supports granting the Veteran's TDIU claim. The competent evidence shows that the Veteran's service-connected disabilities are sufficient to render him unemployable. While VA examinations determined that the Veteran could perform sedentary work; he has additional limitations such that even in a sedentary employment position, the Veteran needed accommodations to frequently get up and move around. In addition, the Board notes functional limitations in walking or other tasks such as bending and lifting. Furthermore, the Veteran's mental health disability and hearing loss disability cause further limitation for employment. Hearing loss requires the Veteran to be provided a quiet environment and the ability to face or look at the speaker. The mental health disability limits his ability in a work environment in that he does not like to be around others and supervision would impact or exacerbate his depression symptoms. The Veteran also has problems with concentration and memory. In short, the evidence indicates that while one service-connected disability alone would not render the Veteran unemployable, the disabilities taken together do render the Veteran unemployable. The central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad, supra. Here, the evidence is that the disabilities are of sufficient severity to render the Veteran unemployable. The ability to work at best in a sedentary position with additional limitations on sitting, lifting, or bending clearly indicates it would make employment difficult, if not impossible, for the Veteran. Moreover, given that he has additional limitations on hearing, working with others, or with supervision, it makes even sedentary work hard to imagine. The Board therefore finds he is unable to secure and maintain substantially gainful employment solely as a result of his service-connected disabilities. The Board notes that the Veteran's current combined disability evaluation for compensation at all relevant times is 70 percent. There was also, during the relevant period, at least one single service-connected disability ratable at 40 percent or more (in this case, the hearing loss disability). Lastly, he has been shown to be unemployable due to his service-connected disabilities. Accordingly, the Veteran is entitled to a TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Given the foregoing, the evidence establishes that the Veteran is unable to secure and maintain substantially gainful employment. Because of this finding and the schedular criteria for a TDIU have been met, the Board finds that entitlement to TDIU is warranted. ORDER 1. Entitlement to a rating higher than 10 percent for ilio-inguinal nerve entrapment is denied. 2. Entitlement to a compensable rating for status post left inguinal hernia repair is denied. 3. Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs