Citation Nr: 1333478	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  10-37 072	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a compensable evaluation for status post incisional hernia repair, to include whether the reduction was proper.

2.  Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and spouse



ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The Veteran served on active duty from February 1997 to November 1998.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that reduced the 10 percent evaluation for status post incisional hernia repair to a noncompensable rating, and that denied the Veteran's claim for TDIU. 

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

During the hearing before the undersigned in July 2012, the Veteran testified his symptoms include pain, abdominal cramping and discomfort.  He also claims there is nerve damage, and that the scar itself is tender and painful.  He asserts his symptoms have increased in severity since the most recent VA examination in October 2008.  When seen by a private physician in May 2011, the Veteran reported pain, primarily on the left abdominal wall.  He added the pain extended into the left lateral chest wall with severe cramping.  An examination revealed tenderness on the left abdominal rectus with multiple trigger areas, easily identifiable when he tightened his abdomen.  The diagnoses were intercostal neuralgia, generalized abdominal pain and spasm of muscle.  

The United States Court of Appeals for Veterans Claims has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination.  Olson v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. at 632.  

With respect to the Veteran's claim for TDIU, this issue is deferred since it is intertwined with the rating issue on appeal.  

The Veteran submitted additional evidence, to include records from his private physician, to the Board in February 2013.  The RO has not had the opportunity to review these records, and the Veteran did not file a waiver of initial review by the RO.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule an appropriate examination to determine the nature and severity of the residuals of the Veteran's incisional hernia repair.  The claims file must be made available to the examiner for review.  The examiner should address any nerve damage that is present and any adhesions resulting from surgery.  All indicated tests should be performed.  The examiner should also furnish an opinion of the effect of the residuals of hernia repair on the Veteran's ability to engage in gainful employment.  

2.  The RO should then review the record and readjudicate the claims on appeal.  If the claims remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further appellate consideration.

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).



_________________________________________________
ALAN S. PEEVY
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).