Citation Nr: 1326206 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-08 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's right inguinal hernia repair and scar residuals for the period prior to June 29, 2009 on an extraschedular basis. 2. Entitlement to a disability evaluation in excess of 20 percent for the Veteran's right inguinal hernia and left inguinal hernia repair and scar residuals for the period on and after June 29, 2009 on an extraschedular basis. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD Eckart, Carol INTRODUCTION The Veteran had active service from August 1984 to February 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Muskogee, Oklahoma, Regional Office which, in pertinent part, denied an increased disability evaluation for the Veteran's right inguinal hernia repair and scar residuals. In May 2010, the Regional Office, in pertinent part; granted compensation under the provisions of 38 U.S.C.A. § 1151 for left inguinal hernia repair and scar residuals; granted compensation under the provisions of 38 U.S.C.A. § 1151 for testicular pain; assigned 10 percent evaluations for those disabilities; effectuated the awards as of June 29, 2009; and denied a TDIU. In November 2010, the Veteran informed the Department of Veterans Affairs (VA) that he had moved to Nevada. The Veteran's claims files were subsequently transferred to the Reno, Nevada, Regional Office (RO). In October 2011, the RO recharacterized the Veteran's inguinal hernia repair residuals as right and left inguinal hernia repair and scar residuals; assigned a 20 percent evaluation for that disability under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7338 (2012) due to bilateral involvement; and effectuated the award as of June 29, 2009. In March 2012, the Board disposed of the increased rating issues on a schedular basis and remanded the claims on an extraschedular basis and an issue of entitlement to TDIU to the RO for additional development. Such has been accomplished and this matter is returned to the Board for further consideration. The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The schedular criteria are adequate for evaluating the Veteran's right inguinal hernia repair and scar residuals for the period prior to June 29, 2009, and the evidence does not reveal that the disorder results in an exceptional or unusual disability picture. 2. The schedular criteria are adequate for evaluating the Veteran's right inguinal hernia and left inguinal hernia repair and scar residuals for the period on and after June 29, 2009, and the evidence does not reveal that the disorder results in an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. The criteria for an extraschedular rating in excess of 10 percent for the Veteran's right inguinal hernia repair and scar residuals for the period prior to June 29, 2009 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5278 (2012). 2. The criteria for an extraschedular rating in excess of 20 percent for the Veteran's right inguinal hernia and left inguinal hernia repair and scar residuals for the period on and after June 29, 2009 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5278 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I . Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In regards to the issues of increased schedular evaluations for the Veteran's right and left inguinal hernia repair and scar residuals, the Board finds that VA has satisfied its duty to notify under the VCAA. VCAA notices were provided to the Veteran in April 2008, September 2008, and May 2010 which informed the Veteran of him of the evidence generally needed to support a claim of entitlement to an increased evaluation for inguinal hernia repair and scar residuals and the effective date for such an award; what actions he needed to undertake; and how VA would assist him in developing his claims. The April 2008 VCAA notice was issued to the Veteran prior to the July 2008 rating decision from which the instant appeal arises. The Veteran's claim was readjudicated in both the February 2009 statement of the case (SOC) and subsequent supplemental statement of the cases (SSOC), with the most recent SSOC done in May 2013. VA has taken all reasonable action necessary to properly assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran has been afforded multiple VA examinations which address the nature and severity of his inguinal hernia repair residuals. The examination reports are of record. All identified and available VA, Social Security Administration (SSA), and private documentation have been secured to the extent possible. This matter was also referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service (VBA) for an opinion on extraschedular entitlement, with such opinion obtained in April 2013 which affirmed an opinion from the C & P Advisory Staff from February 2013 and both opinions are included in the claims file. The RO's May 2013 SSOC is noted to have considered February 2013 and April 2013 extraschedular opinions from the C & P advisory staff and Director of VBA as well as all the additional evidence obtained. The Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to notify or to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case insofar as any errors committed were not harmful to the essential fairness of the instant proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board consideration of the merits of his claims. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to Ratings in excess of 10 percent for the Veteran's right inguinal hernia repair and scar residuals for the period prior to June 29, 2009 and in Excess of 20 percent for bilateral hernias and scar residuals as of June 29, 2009 on an Extraschedular Basis The Veteran contends that he is entitled to higher ratings than currently evaluated for his service connected left and right hernia post service residuals with scarring. The Board has adjudicated the schedular ratings for these conditions in its May 2012 decision. In this decision, the Board determined that a schedular rating in excess of 10 percent was not warranted for the right inguinal residuals prior to June 29, 2009, with the applicable schedular criteria 38 C.F.R. § 4.114, Diagnostic Code 7338 showing that a 10 percent evaluation is warranted for a recurrent post-operative hernia which is readily reducible and well-supported by a truss or belt. A 30 percent evaluation was not found to be met, as such rating is to be assigned for a small post-operative recurrent hernia or an unoperated irremediable hernia which is either not well-supported by a truss or not readily reducible. The Board also determined that as of June 29, 2009, no more than a 20 percent evaluation for bilateral (left and right) inguinal hernia residuals was warranted under the provisions of 38 C.F.R. § 4.114 , Diagnostic Code 7338 (with an additional 10 percent rating added for bilateral involvement). The Veteran did not appeal the Boards May 2012 adjudication on a schedular basis, and it is deemed final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R § 20.1104 (2012). The question presently at issue is limited to whether a higher rating is warranted on an extraschedular basis for these conditions. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155, 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2008); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The report of a June 1996 VA examination for compensation purposes states that the Veteran exhibited a reducible right inguinal hernia. The Veteran was diagnosed with post-operative right inguinal hernia residuals with recurrence. In July 1996, VA increased the evaluation of the Veteran's right inguinal hernia repair residuals from noncompensable to 10 percent and effectuated the award as of May 31, 1996. The Veteran filed the current claim for an increased rating for the right hernia in March 2008. In July 2009 he filed a claim for compensation for a left inguinal hernia repair and scar residuals. In May 2010, VA granted compensation under the provisions of 38 U.S.C.A. § 1151 for left inguinal hernia repair and scar residuals; assigned a 10 percent evaluations for that disability; and effectuated the award as of June 29, 2009. In October 2011, the RO recharacterized the Veteran's hernia repair residuals as right and left inguinal hernia repair and scar residuals; assigned a 20 percent evaluation for that disability under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7338 (2011) due to bilateral involvement; and effectuated the award as of June 29, 2009. In a March 2012 decision, the Board in pertinent part, denied ratings in excess of 10 percent for the right hernia repair residuals and scar prior to June 29, 2009 and in excess of 20 percent for the left and right hernia repair residuals and scars as of June 29, 2009 on a scheduler basis only, using the applicable schedular criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 7338. The question of whether entitlement to TDIU pursuant to 38 C.F.R. § 4.16 is being remanded for further development and therefore will not be addressed in this decision. This leaves the Board to now only consider entitlement to increased ratings for these disorders on an extraschedular basis. If an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. 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 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In pertinent part, the Board notes that the Veteran has reported having at least a high school education; this is described in a September 1991 VA examination and social industrial survey, where he related having graduated high school as valedictorian. The high school education is also noted in the July 2010 Social Security decision that awarded him disability benefits. His work experience was noted in the September 1991 VA examination to be clerical in nature, as he was working as a casualty clerk for the past 5 years. Subsequently, he is noted to have been unemployed at the time he filed his increased rating claim in March 2008. His past relevant work is noted in the Social Security records to have included having included semi skilled work without contact with the general public, with physical restrictions for light work due to lifting and carrying restrictions. He was unable to return to his past relevant work as a general manager. At an April 15, 2008, examination for compensation purposes conducted for VA, the Veteran complained of lower stomach, groin, and testicular pain; swelling; an inability to lift and to stretch; intensive pain after eating or drinking; and sleeplessness due to pain. He reported that he was scheduled to undergo bilateral inguinal hernia repairs the day after the examination. On examination, the Veteran exhibited well-healed bilateral inguinal hernia repair scars; and a right reducible inguinal hernia measuring 3 centimeters by 1 centimeter which could not be supported by a belt or a truss. The examiner stated that the right inguinal hernia was remediable and operable. An April 16, 2008, VA treatment record states that the Veteran complained of burning right inguinal pain. On examination, the Veteran exhibited well-healed bilateral inguinal hernia repair scars; "some" decreased sensation over the left "GF" nerve distribution; and no herniating masses. An assessment of "no evidence of hernia" was advanced. In July 2008 he underwent surgical consult for complaints of left groin pain, with the history of most recent inguinal hernia repairs done in 2004 on the left and in 1998 on the left. He underwent diagnostic laparoscopy and possible left inguinal hernia repair if indicated. A July 2008 VA operative report for diagnostic laparoscopic left inguinal repair and lysis of adhesions states that no direct or indirect right inguinal hernia was present. There was also no left inguinal hernia present, although adhesions and an exposed plug at the left internal ring were noted. The post surgery assessment was simply stated as left groin pain. In August 2008, the Veteran underwent VA surgery for an esophageal hernia, and gastroesophageal reflux disease (GERD) and gastritis with the surgery limited to his esophageal and abdominal region. There is no indication that the surgery involved either the left or right inguinal hernias. He had post surgical complications including impaired abdominal incision requiring extended inpatient treatment through September 2008, and continued outpatient follow-up in October 2008. Again this extended treatment is not shown to have involved either left or right inguinal hernia regions. An October 2008 written statement from E. C., the Veteran's roommate, conveys that the Veteran's inguinal hernia repair residuals prevented him from both driving and riding in a car; performing household chores such as the laundry, vacuuming, and taking out the trash; lifting any item; and securing a job. In a September 2008 written statement, the Veteran advanced that: I'm a 40 year old male that has the daily activities of a 60 year old man. I am in constant pain; I can't stretch my arms above my head. I experience swelling of the abdominal and groin region so as to make sitting for any length of time (30 or more minutes) impossible. My daily lifestyle has been reduced to a recluse. ... This hernia has destroyed my quality of life. I am unable to find gainful employment at this time if I disclose the lifting restrictions that these have imposed on me. ... I have trouble sleeping, eating, and even performing the household chores such as running the vacuum, emptying the trash, or putting away groceries. I have been almost totally dependent upon others for completing daily activities. Also in September 2008 a letter from the Veteran's counselor stated that he started seeing the Veteran for counseling since August 2008, right after an incident with a hernia operation that had left him hurt, in pain and unable to work. A December 2008 statement from the Veteran's former employer described having employed the Veteran as a temporary seasonal employee at the bistro/flower shop she owned. She noted that beginning in the summer of 2007 the Veteran began to complain of pain in the lower groin area, and reported that he had pulled something while taking his trash out at home. He had indicated that he would seek further VA treatment if it continued to bother him. Since the summer of 2007 his employer has been unable to utilize the Veteran for any type of work in her shop. She indicated that his past duties included light lifting, but he was now unable to perform any of the prescribed duties without complaints of pain and the inability to perform duties to the company's standards. As a result of this injury and subsequent treatment he was receiving, she could not consider the Veteran for any of the jobs he previously performed or for any further projects. A March 2009 VA treatment record relates that the Veteran complained of persistent inguinal hernia pain. The Veteran was prescribed medication. A May 2009 private psychiatric examination documented the Veteran as reporting that his bilateral inguinal hernias cause varying degrees of pain and that he was unable to pick up heavy items. He reported that he began having problems in April 2008 and was fired from his job as a technician for LCD panels, as he was unable to move heavy television sets. He reported this limitation to the employer. Prior to that he gave a history of having worked for a computer company for 10 years. He now reported that employers will have nothing to do with him due to his history of hernias when he tried to find employment. His activities of daily living were described as limited as he was unable to wash pots or pans due to them being too heavy. He indicated that he spent his days reading, watching television, playing video games and running errands, including grocery shopping. Although he indicated that he could only sit for 15-20 minutes at a time due to pain, he did play video games 1-2 hours a night. An October 2009 VA treatment entry states that the Veteran complained of left groin pain. At a January 2010 examination for compensation purposes conducted for VA, the Veteran complained of chronic burning left groin pain and associated testicular nerve damage, and an inability to lift, to sit, to move, to stand, and to walk. On examination, the Veteran exhibited well-healed bilateral inguinal hernia repair scars; left scrotal tenderness; and no inguinal hernias. The Veteran was diagnosed with right and left inguinal hernia repair residuals. The examiner stated that "the effect of the condition on the claimant's usual occupation is pain interferes with lifting" and "the effect of the condition on the claimant's daily activity is limited lifting." The scars themselves were noted to result in no limitation of motion or of function. In a November 2009 statement the Veteran reported being unable to perform clerical job duties due to a systemic skin disorder of dermatographism/urticaria. No mention was made of the impact of his hernia disorders on such a job position. At a January 2010 VA examination for a psychiatric disorder, his military occupational specialty was noted to be as a clerk. His complaints of functional limitations included being unable to sit longer than 15 minutes, can't do household chores or shopping, requiring help from other to unload the car. He reported difficulty lifting more than 5 pounds at a time and of being in extreme pain all the time, with pain at a constant 6 but sometimes going up to 7 to 9 depending on movement. His post service vocational history was significant for some college hours. He worked for a computer company for 9 years. He then worked as a line supervisor for one year, but was terminated as he could not do inventory because of his hernia. The examiner noted that while the Veteran claimed to be unable to sit still for more than 15 minutes at a time, he was able to sit comfortably through this examination. This was felt to belie some of his claims about functional limitations. The examiner noted that the Veteran was unemployed and that he cannot work because he cannot sit still for more than 15 minutes and he cannot unload his groceries. However he again was noted to appear to sit comfortably during this examination. At an August 2011 VA examination for compensation purposes, the Veteran complained of chronic left inguinal pain for which he took prescribed Oxycodone. On examination, the Veteran exhibited no hernias. The Veteran was diagnosed with left inguinal hernia repair residuals with "no residuals." The examiner opined that the Veteran's left inguinal hernia residuals had "no significant effects" on either his occupational or daily activities. VA treatment records from 2011 to 2012 revealed the Veteran to treat with Oxycodone for chronic pain that included not only the inguinal hernias, but also chronic gastrointestinal disorders following his 2008 surgery to treat his GERD/hiatal hernia complaints. An October 2011 note described him as being on opioids, presently oxycodone, since 2007 for nerve entrapment of his left testicle. He last contacted the VA for a refill of medication in June 2012, and was noted to have been a no-show and have canceled his prior appointments despite being advised to see a provider and get labs drawn prior to renewing his prescription. In December 2012 the Veteran underwent another VA examination to address his inguinal hernia complaints. This examination again detected no hernias on the left or right inguinal regions. There was no indication for a supporting belt or truss. He continued to complain of pain with lifting any objects and pain with prolonged sitting and moving his body in certain positions. He also had scars, that were neither painful nor unstable. However the functional impact of the hernia condition was described as impacting his ability to work, due to severe limitations in bending or lifting due to left inguinal pain. He also had moderate limitation in prolonged sitting specifically riding in a car due to the same pain. Therefore physical and sedentary employability was severely and moderately affected respectively by his left inguinal pain. An addendum by the December 2012 examiner issued in February 2013 clarified and corrected the prior opinion on functional impact of the bilateral inguinal hernia residuals. The examiner stated that the Veteran's hernias do not impact his ability to work. The examiner noted that his prior assessment regarding his limitations of lifting and riding a car was made based on the Veteran's subjective complaints of pain and functional limitations. Overall these limitations are most likely disproportionately more severe than the objective findings and observations during this examination. The frequency of medical visits and pain medication refills are less consistent with the Veteran's complaints of disabling pain. A February 2013 Opinion for Consideration of Extraschedular Evaluation done by the Veterans Service Center Manager discussed the factual background to include the subjective complaints of the Veteran, and the lay statement from his roommate regarding his functional limitations. The medical evidence was also considered including the findings and conclusions from the VA examiners. The Veteran was noted to have not returned to the VA since March 2012 when his oxycodone was refilled and has not reported any civilian treatment. After review of the findings including the VA examination of December 2012 and the February 2013 addendum, an opinion was made that extraschedular evaluations were not warranted, including for the right inguinal hernia for any portion of the period between March 21, 2008 and June 29, 2009, or for the bilateral inguinal hernia for any portion of the period on or after June 29, 2009. The discussion noted that the Veteran has consistently reported severe functional impact and statements from individuals knowing him also attested to witnessing him exhibit limited motion due to his reports of pain. However his subjective descriptions of limitations due to pain have not been consistent with medical findings and have been characterized as disproportionately severe compared to objective findings. It was recommended that his subjective reports of pain and limited function which are disproportionate to objective evidence, should not be used as the basis for an extraschedular evaluation. Although he was not working and states that this is due to the effect of his service connected hernias and associated testicular pain, his limitations have not been medically linked to the physical effects of these service connected conditions. An April 2013 decision from the Director of Compensation Services of the VBA stated that after administrative review of the February 2013 extraschedular opinion and the evidence included, he concurred with the recommendation to deny increased evaluation for the Veteran's bilateral inguinal hernias on an extraschedular basis. The evidentiary record was found not to demonstrate that the symptomatology consistently associated with the service connected bilateral hernias is not wholly contemplated by the criteria utilized to assign all evaluations for all time periods. In this case, the medical evidence fails to show anything unique or unusual about the Veteran's inguinal hernia disabilities, both prior to and as of June 29, 2009, that would render the schedular criteria inadequate. Again the Board notes that the schedular criteria under 38 C.F.R. § 4.114, Diagnostic Code 7338 shows that a 10 percent evaluation is warranted for a recurrent post-operative hernia which is readily reducible and well-supported by a truss or belt. Comparing the Veteran's current disability level, functional impairment, and symptomatology to the Rating Schedule, the degree of disability shown is contemplated by the Rating Schedule and the assigned schedular rating is adequate for the left hernia residuals prior to June 29, 2009. The findings on the examinations and in the medical treatment records closely correspond to the rating criteria for the current 10 percent rating for the right hernia. Thus this rating adequately addresses the symptoms and findings shown in the above discussed medical evidence regarding his right hernia disability. Likewise, the Board finds that for the period beginning on June 29, 2009, the bilateral hernia residuals are adequately contemplated by the 20 percent evaluation under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7338 that afford an additional 10 percent rating added for bilateral involvement. Under the analytic approach mandated by Thun, the matter of whether there is marked impairment or frequent hospitalizations are addressed only if, and after, it is determined that the schedular rating criteria are inadequate. Notwithstanding this decision, the Board points out that at no point during this appeal has the hernia disability (either right or bilateral) been shown to result in "frequent periods of hospitalization" nor "marked interference with employment." While he is precluded from non-sedentary employment requiring lifting and carrying, the evidence discussed above has shown he is not limited from sedentary employment due to his hernia conditions, and his work history is shown to have included sedentary employment. Therefore, the preponderance of the evidence shows that the Veteran's left hernia disability prior to June 29, 2009 and bilateral hernia disability as of June 29, 2009, by itself does not result in such a unique or unusual disability that would render the schedular criteria inadequate. The Board finds no basis upon which to overturn the April 2013 decision from the Director of Compensation Services of the VBA rendered by the on this matter. The Veteran's claim for a rating in excess of 10 percent for right inguinal hernia repair and scar residuals for the period prior to June 29, 2009, and in excess of 20 percent for right inguinal hernia and left inguinal hernia repair and scar residuals for the period on and after June 29, 2009 is denied on an extraschedular basis. ORDER Entitlement to a disability evaluation in excess of 10 percent for the Veteran's right inguinal hernia repair and scar residuals for the period prior to June 29, 2009 on an extraschedular basis is denied. Entitlement to a disability evaluation in excess of 20 percent for the Veteran's right inguinal hernia and left inguinal hernia repair and scar residuals for the period on and after June 29, 2009 on an extraschedular basis is denied. REMAND The Board finds that it is necessary to remand the issue of entitlement to TDIU, which had previously been remanded pursuant to the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Although the RO is noted to have denied TDIU in an unappealed rating in 2010, and the Board remanded the TDIU issue as part and parcel of the underlying increased rating claims for the left and right inguinal hernia disorders, subsequent development and adjudicatory actions require consideration of the TDIU claim in context of all the disabilities for which service connection is in effect. The Veteran's service connected disabilities include more than the left and right hernia disabilities which have been fully adjudicated. They include a psychiatric disorder, classified as major depressive disorder, recurrent, testicular pain and a skin disability classified as dermatographism and urticaria. His combined disability is less than 70 percent, which brings the whole matter back to extraschedular consideration. Extraschedular consideration has been accomplished in the above decision, but is limited only to the bilateral hernia disabilities. However a single sentence from the April 2013 Admin Review by the C&P director states "Evidence does not demonstrate that the Veteran has been or is unemployable due to any of his service connected conditions." This opinion contains no rationale or discussion of the other service connected conditions besides the hernia. Nor does the February 2013 extraschedular opinion discuss the other service connected conditions. The RO in the SSOC of May 2013 cites that sentence made by the C & P director, thereby bringing consideration of all the Vet's service connected conditions, not just the bilateral hernias into the Board's jurisdiction for this Rice TDIU issue. Thus the Board finds that in order to properly adjudicate the TDIU issue with consideration of all service connected disabilities requires additional development. The service connected skin disability diagnosed as dermatographism and urticaria, was last examined in November 2009 and the service connected psychiatric disorder was last examined in January 2010. Thus re-examination to assess the current severity of these service-connected disorders for the purpose of adjudicating the TDIU claim is necessary. Should the Veteran be found to continue to fail to meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) (2012), the matter shall need to be returned for an extraschedular opinion regarding all the service connected disorders, with particular attention to the psychiatric and skin disorders, with adequate rationale provided. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examinations to determine the nature, extent, frequency and severity of any impairment related to the Veteran's service-connected skin disorder and psychiatric disorder. The claims folder should be made available to and reviewed by the examiner(s). The examiner(s) should conduct all indicated tests and studies. The examiner should specifically address the impact these service-connected disabilities have on his ability to obtain and retain employment. All findings and conclusions should be set forth in a legible report. 2. Thereafter, only if the evidence reveals that the schedular criteria continues not to be met for consideration of TDIU under 38 C.F.R. § 4.16(a) (2012), the RO should refer the issue of entitlement to TDIU, to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of assignment of an extra-schedular evaluation for all the Veteran's service-connected disabilities to include skin disorder and psychiatric disorder, in addition to the service-connected hernia disabilities under 38 C.F.R. § 4.16(b) (2012). 3. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's TDIU claim. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). (CONTINUED ON NEXT PAGE) ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs