Citation Nr: 1324808 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-20 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for the residuals of status post right inguinal hernia repair, for the period from October 6, 2010. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). (The claim of clear and unmistakable error (CUE) in an August 6, 1973 Board decision that denied service connection for left knee and right ankle disabilities will be the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to November 1970, and from August 1974 to December 1974. He also had service with the U.S. Army Reserve from 1974 until approximately 1980 or 1982; presumably this included periods of active duty for training and inactive duty training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2006 (granting service connection for the residuals of status post right inguinal hernia repair) and May 2008 (denying TDIU) by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge during a Board hearing in April 2011 in Washington, D.C. A transcript of this hearing is of record. In a September 2011 decision, the Board (in pertinent part) remanded the issues currently on appeal for additional action including obtaining up-to-date treatment records and a VA evaluation to ascertain the current nature and severity of the residuals of right inguinal hernia. VA treatment records were obtained and the Veteran was afforded a VA examination in April 2012. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The April 2012 examination report reflects that the Veteran's records were reviewed and contains the requested opinion. The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. Both the Board and originating agency (see July 2012 Supplemental Statement of the Case) have reviewed the VVA file, which includes VA treatment records and examination reports dated from October 2010 to June 2012. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. For the period beginning October 6, 2010, the Veteran's residuals of status post right inguinal hernia repair are not shown to have been manifested by recurrence of an inguinal hernia, readily reducible, and well supported by truss or belt. 2. For the period of the appeal, the Veteran does not meet the minimum threshold requirements for a TDIU on a schedular basis; the Veteran's service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. For the period beginning October 6, 2010, the criteria for a compensable rating for residuals of status post right 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. 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832 ) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the hernia issue, the appeal is from the initial rating assigned with awards of service connection. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess, supra. The Veteran is exercising his right to appeal the rating assigned. A May 2007 statement of the case properly provided the Veteran with notice of the criteria for rating hernias, and further notice on the downstream issue of an increased initial rating, including of what the evidence showed, and why the current rating was assigned. The Veteran has had opportunity to respond. He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency. Regarding the TDIU claim, the record reflects that the Veteran was provided all required notice in a letter sent in January 2008, prior to the initial adjudication of the claim in May 2008. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claims. The Board is also unaware of any such records. Moreover, the Veteran has been afforded an appropriate and adequate VA examination in April 2012. Given that the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient. Therefore, the Board concludes that VA has complied with its duty to assist the Veteran. Increased Rating for Residuals of Status Post Right Inguinal Hernia Repair 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 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson the Veteran is only competent to report observable symptoms--not clinical findings which are applied to VA's Schedule for Rating Disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran's service-connected hernia disability is rated pursuant to Diagnostic Code 7338, which provides ratings for inguinal hernia. A small inguinal hernia, reducible, or without true hernia protrusion, is rated noncompensable (0 percent) disabling. An inguinal hernia that is not operated, but is remediable, is rated noncompensable (0 percent) disabling. A postoperative recurrent inguinal hernia, readily reducible, and well supported by truss or belt is rated 10 percent disabling. A small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, is rated 30 percent disabling. A large inguinal hernia, postoperative recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable, is rated 60 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7338. The provisions of 38 C.F.R. § 4.31 also indicate that a zero percent evaluation will be assigned when the symptomatology required for a compensable rating is not shown. See 38 C.F.R. § 4.31. The Board 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 its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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 the claim. Historically, the Veteran's STRs note that he underwent surgical repair of a right inguinal hernia in May 2000. A May 2006 rating decision granted service connection for the residuals of status post right inguinal hernia repair and awarded an initial noncompensable (0 percent) disability rating, effective August 18, 1997. The Veteran appealed the rating assigned. In a September 2011 decision, the Board denied entitlement to an initial compensable rating for the period from August 18, 1997, through October 5, 2010. Therefore, that period is no longer at issue. What remains is the issue of entitlement to a compensable rating for the period beginning October 6, 2010. An October 6, 2010, VA outpatient treatment record notes that the Veteran was seen for various complaints of pain, including groin pain. He insisted that he had a hernia even though a CT scan in 2003 showed no such evidence. The Veteran was referred to the Pain Clinic. The VA resident physician opined that the Veteran's chronic inguinal pain was possibly a result of lymphatic drainage problems, apparently from his history of in-service trauma. Subsequent treatment records show that the Veteran was prescribed Tramadol for his various complaints of pain, including knee pain. Records also show that the Veteran was obese. During his Board hearing in April 2011 the Veteran testified that his hernia symptoms had worsened, that a VA doctor had told him about two months earlier that he needed surgery, that his hernia popped out, that it was popped out at the time of the Board hearing and was painful, and that the repair surgery had not been scheduled yet (see transcript at pages 8-12). In July 2011, October 2011 and January 2012 the Veteran was seen with various complaints of pain, including right inguinal pain. He indicated that his prescribed pain medication did not help. Examination revealed a soft, non-tender, non-distended abdomen. An April 2012 VA examination report notes the Veteran's history of right inguinal hernia repair in 1970. He was evaluated in 2003 because of persistent groin pain. CT scan at that time revealed no evidence of hernia or right inguinal pathology. Currently the Veteran complained of right groin pain, sometimes with intercourse, and worse with mobility. The Veteran described the pain as located in the right groin, left groin and suprapubic area. He also complained of discomfort while urinating. On examination no inguinal hernia was detected. A small ventral hernia and a reducible, non-painful umbilical hernia were noted. There was no indication for a supporting belt. All surgical scars were stable and not painful. The examiner opined that the Veteran's service-connected hernia residuals did not impact his ability to work After reviewing the claims file the examiner opined that there was no objective evidence to support the Veteran's subjective complaints of local discomfort. Based on the evidence of record, the Board finds that a compensable disability rating is not warranted for the Veteran's service-connected status post right inguinal hernia repair, for the period beginning October 6, 2010. The medical evidence during this time period shows the Veteran's subjective complaints of pain at the site of the pre-service right hernia repair, but no findings of a current right inguinal hernia on examination. The objective medical evidence fails to establish a post-operative recurrent inguinal hernia, readily reducible and well supported by a truss or belt (for a 10 percent rating) or a small or large postoperative recurrent hernia that was not well supported by a truss or readily reducible (for higher ratings). The Veteran is competent to identify symptoms such as pain and tenderness because he personally experiences them. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr, 21 Vet. App. at 303. He further is credible in identifying these symptoms, as there is no reason to doubt him. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that a showing of interest, bias, and inconsistent statements generally are the factors used to evaluate credibility). However, his contentions do not support his claim for a compensable rating for his underlying disability. Despite the Veteran's evidence as to the observable symptoms of his disability, such as pain, the objective evidence before the Board shows that those manifestations do not satisfy the diagnostic criteria for a compensable rating for an inguinal hernia under Diagnostic Code 7338. As a result, his assertions do not constitute evidence that this disability warrants an increased rating for the time period under discussion. For all the foregoing reasons, the Veteran's claim for a compensable rating for the residuals of status post right inguinal hernia repair for the period from October 6, 2010 must be denied. See Fenderson, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). 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. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's service-connected hernia disability are contemplated by the schedular criteria and the assigned schedular evaluation is adequate, as discussed above. The rating criteria provide for a higher rating for additional or more severe symptoms than currently shown by the evidence. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extra-schedular consideration is not warranted. As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income. . . ." A claim for TDIU "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet App. 31 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). TDIU 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 disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulation further provides that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. In any event, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board, however, does not have the authority to make such an assignment in the first instance. Rather, the Board may only grant a total rating under section 4.16(b) after the issue of extra-schedular consideration has been first referred to and denied by VBA's Director of Compensation & Pension Service. Additionally, the Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) ... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert, supra. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert, 1 Vet. App. at 54. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims files and VVA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales, supra. Hence, 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 the claim. The Veteran has five service-connected disabilities (residuals of right ankle disability, residuals of status post right inguinal hernia repair, right inguinal hernia repair scar, left chondromalacia patella, and right chondromalacia patella), none of which has been rated as more than 10 percent disabling for the period of the appeal. The combined disability rating for the service-connected disabilities for the appeal period has been no more than 40 percent. Accordingly, the Veteran does not meet the minimum threshold requirements for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). In a September 2007 statement, the Veteran maintained that he was totally disabled due to his service-connected disabilities. In April 2008, the Veteran submitted his original claim for TDIU (VA Form 21-8940). He reported that he had only a high-school education. He last worked full time in March 1999 as a security officer. He reported that he was unable to work because of his service-connected knee, hernia and ankle disabilities, as well as nonservice-connected cervical and lumbar disc herniations, hand and arm swelling and carpal tunnel syndrome. Dr. E.S., one of the Veteran's private physicians, stated in correspondence received in June 2008 and March 2009 that the Veteran's service-connected disabilities were the cause of his unemployability. Dr. E.S. acknowledged the Veteran had several nonservice-connected disorders, including cervical and lumbar spine disorders, as well as a median nerve condition, psychological problems and a work-related carpal tunnel disorder. Dr. E.S. stated that the Veteran's work-related injuries were "secondary total disabilities," but did not explain exactly what this meant or why the Veteran's service-connected disabilities were more responsible for an inability to engage in gainful employment than his nonservice-connected disabilities. During an April 2011 Board hearing, the Veteran testified that he was unable to work because of his service-connected disabilities. He reported that he had been working as a security guard, but got injured in 2002 and was awarded workman's compensation. Prior to that, he worked in construction, as a custodian, and in other odd jobs. An October 2011 VA outpatient treatment record notes that the Veteran was seen with complaints of pain related to his service-connected disabilities. He reported that he was able to bathe himself, dress without assistance, use the bathroom without assistance, get in and out of chairs and beds without assistance, and eat without assistance. The Veteran underwent a VA hernia examination in April 2012. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran's hernia residuals, to include a scar, may have some interference with his employment due to subjective complaints of local discomfort, mainly with motion. The examiner also noted, however, that these subjective complaints were not objectively verified in the medical records. Furthermore, there was no evidence that these complaints prevent sedentary employment. The Veteran also underwent a VA orthopedic examination in April 2012. After examining the Veteran and reviewing the claims file, the examiner opined that although the Veteran's service-connected knee and ankle disabilities prevented physical employment, he was not unemployable for sedentary employment. The examiner further noted that the Veteran's nonservice-connected diabetes, hypertension, obesity, neck disability and back disability also impacted his ability to work. Here, the originating agency has determined the factors warranting extra-schedular consideration are not shown. The Board also finds that the evidence fails to show that the service-connected disabilities are exceptional or unusual so as to warrant referral to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for extra-schedular consideration of TDIU. First, the record does not show frequent periods of hospitalizations for his service-connected disabilities. Second, the evidence does not support a finding that the Veteran is demonstrably unable to obtain or maintain employment due to his service-connected disabilities. The medical evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. While the evidence shows that the Veteran is unemployed, the record does not support a finding that his service-connected disabilities, either alone or in concert, preclude him from maintaining substantial and gainful employment. In this regard, the Board acknowledges the opinions from Dr. E.S.; however, there is no indicated that he reviewed all of the Veteran's treatment records before providing his opinion. In addition, he provided no reasons and bases for his opinion. Conversely, the April 2012 VA examiners opined that the Veteran would not be prevented from some sedentary (non-strenuous) occupations. The examiners reviewed the claims files and thoroughly examined the Veteran before rendering the opinions. Thus, while it is clear that the Veteran's service-connected disabilities may affect him in an occupational setting, the record does not support a finding that his service-connected disabilities precludes him from maintaining all forms of substantial and gainful employment consistent with his education and occupational background. In light of the foregoing, the Board finds that the Veteran does not meet the requirements for a TDIU on an extra-schedular basis. As such, the Board finds that the preponderance of the evidence is against the Veteran's TDIU. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER A compensable rating for the residuals of status post right inguinal hernia repair, for the period from October 6, 2010, is denied A TDIU is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs