Citation Nr: 1314005 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-23 182A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an evaluation in excess of 10 percent for recurrent left inguinal hernia with mesh repair, from December 1, 2008. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1955 to September 1958. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted a 30 percent evaluation for the Veteran's left inguinal hernia, effective June 4, 2008 to October 13, 2008; allowed a temporary total evaluation on the basis of the need for surgery requiring convalescence from October 14, 2008 to November 30, 2008; and, assigned a noncompensable evaluation for the Veteran's left hernia disability, from December 1, 2008. The Veteran timely appealed that decision. In a June 2009 rating decision, the RO increased the Veteran's left hernia disability evaluation to 10 percent disabling, from December 1, 2008. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge in July 2010; a transcript of that hearing is associated with the claims file. In an October 2012 decision, the Board denied entitlement to an evaluation in excess of 30 percent for left inguinal hernia for the period June 4, 2008 through October 13, 2008; denied entitlement to an earlier effective date for the temporary total evaluation prior to October 14, 2008; and, denied entitlement to an extension of that temporary total evaluation beyond December 1, 2008. The Board remanded the issue of entitlement to an increased evaluation for left hernia disability in excess of 10 percent from December 1, 2008, for further development. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the October 2012 Remand, the Board instructed that the Veteran be afforded another VA examination of his left inguinal hernia; such was accomplished in November 2012. The Board asked the examiner to state whether the Veteran's left hernia was small or large, as well as to address several other rating criteria; the examiner was additionally asked to state all manifestations of the Veteran's noted right inguinal hernia repair stemming from the October 14, 2008 surgery. The examiner responded by noting that there was "no hernia detected" for either side. There was no notation regarding recurrence, management with a truss or belt, etc. noted for either of the noted bilateral hernias. The examiner noted that the claims file was not available for review. In a February 2013 addendum, the examiner noted that he reviewed the claims file, stated that he had responded with regards to recurrence in the previous examination report, stated that there was no objective evidence of limitation in either physical or sedentary work due to the Veteran's left hernia, noted that there was no objective evidence of severe complete paralysis of the left ilioinguinal nerve entrapment for which he was service-connected for, and noted that the manifestations of the Veteran's right hernia were well-documented in the previous examination report. The Board finds that a remand is necessary at this time in order to obtain another VA examination with a different VA examiner such that adequate answers to the Board's instructions in the previous remand are received. First, the Board notes that the examiner did not respond to whether the left inguinal hernia was recurrent or not, small or large, or any other of the rating criteria specifically asked for in the instructions; merely responding "no hernia detected" is not an adequate answer to whether such symptomatology is present, particularly when it is noted in the claims file that the Veteran has no less than 5 left inguinal hernia procedures since the 1960's. Moreover, the November 2012 examination report does not list any manifestations of the right inguinal hernia repair residuals, and again merely responds that "no hernia was detected." While the Board acknowledges that no hernia was currently detected at the time of the examination, such does not assist in applying the schedular criteria. An opinion must be obtained as to whether the Veteran's right inguinal hernia is recurrent, whether it is readily reducible, and whether it is well-supported by a truss or belt. The examination report is inadequate with regards to these details. Finally, the examiner was asked to state whether the Veteran's left ilioiguinal nerve entrapment was manifested by more than severe to complete paralysis. The examiner responded that there was no objective evidence of any severe complete paralysis of that nerve on examination. Initially, the Board notes that it does not appear any nerve/neurological testing was even accomplished by the VA examiner during the examination. Moreover, there was no rationale for that opinion given. In fact, it is not clear that the examiner fully understood the Board's inquiry. The Board notes there was evidence of record which demonstrated that the Veteran's pain which he was complaining of was a symptom of his separately evaluated nerve condition; thus a determination needed to be made as to whether this was due to his nerve condition or whether such symptom was more appropriately distinctly related to his left inguinal hernia disability. No discussion of this point was made in the November 2012 examination report or subsequent addendum, nor does the examiner address the Veteran's lay evidence with regard to pain or whether the mesh repair was working. Given all of the above deficiencies, the Board finds that a new VA examination with a different VA examiner is necessary, and therefore this claim must be remanded. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Updated private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any relevant VA treatment records from the Columbia VA Medical Center, or any other VA medical facility that may have treated the Veteran, since January 2013 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his left inguinal hernia disability, which are not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination with an examiner other than the November 2012 examiner, if at all possible, to determine the current nature and severity of his bilateral hernia residuals. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The examiner should indicate all symptomatology associated with the Veteran's residuals of his right and left hernias, which were last surgically repaired in October 2008. In so discussing, the examiner should specifically state, to the best of his or her ability, whether each hernia is: (a) Small, reducible, or without true hernia protrusion; (b) Not operated, but remediable; (c) Postoperative recurrent, readily reducible and well supported by truss or belt; (d) Small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible; or, (e) Large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible when considered inoperable. In the event that the examiner answers either (a) or (b) to the above for either hernia, the examiner should specifically give a rationale for such conclusions, particularly in light of the October 2008 procedure which surgically repaired bilateral hernias. The examiner should additionally neurologically test the Veteran for any symptoms regarding his left ilioiguinal nerve entrapment. The examiner should state whether that condition is manifested by more than severe to complete paralysis. The examiner should state whether the Veteran's lay complaints of pain is a separate and distinct manifestation which can be distinctly associated with solely his left ilioinguinal nerve entrapment condition. The examiner should address the Veteran's lay statements with regard to pain and that the mesh repair for his hernias is not currently functioning to reduce/support his hernias. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following the above, readjudicate the Veteran's claim for increased evaluation for his left inguinal hernia for the period from December 1, 2008. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The Veteran and his representative have 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 of Veterans' Appeals 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). _________________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).