Citation Nr: 1328807 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-33 789A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for sexual dysfunction to include as secondary to service-connected right inguinal hernia. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disorder. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right hip disorder. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for posttraumatic stress disorder. 6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a disorder of the larynx with hoarseness and voice alteration. 7. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a gastrointestinal disorder. 8. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for gastroesophageal reflux. 9. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a joint pain disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 10. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for depressive disorder with insomnia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 11. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a skin disorder. 12. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for chronic fatigue, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.. 13. Whether new and material evidence has been received to reopen the claim of entitlement to a temporary total evaluation due to surgery of the throat under 38 C.F.R. § 4.29. 14. Entitlement to a rating in excess of 10 percent for residuals of a right inguinal hernia. 15. Entitlement to a total disability evaluation based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to November 1972, from January 1991 to April 1992, from May 1996 to August 1996, and from September 1996 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision by Regional Office (RO) of the Department of Veterans Affairs (VA) located in Indianapolis, Indiana. In May 2010, the Veteran submitted a request to attend a travel Board hearing. In July 2010, the Veteran indicated that he was withdrawing his request for a travel Board. The issues of entitlement to service connection for sexual dysfunction to include as secondary to service-connected right inguinal hernia; for left hip disorder; for post-traumatic stress disorder (PTSD); for a disorder of the larynx with hoarseness and voice alteration; for a gastrointestinal disorder; for gastroesophageal reflux; for a joint pain disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; for depressive disorder with insomnia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; for a skin disorder; for chronic fatigue, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 as well as entitlement to a temporary total evaluation due to surgery of the throat under 38 C.F.R. § 4.29 and entitlement to a total rating based on individual unemployability (TDIU) are REMANDED to the RO via the Appeals Management Center, in Washington, DC. FINDINGS OF FACT 1. The preponderance of the competent probative evidence demonstrates that the Veteran's hepatitis C was the result of illegal drug use. 2. In December 1994 and April 1995, the RO denied service connection for residuals of a left hip injury. The Veteran did not perfect an appeal, and the decisions are final. 3. Since the December 1994 and April 1995 rating decisions, relevant service treatment records have been associated with the claims file. These records existed at the time of the RO's December 1994 and April 1995 rating decisions denying service connection for residuals of a left hip injury, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 4. In March 1984, the RO denied service connection for a right hip disorder, although notified of the denial in April 1994, the Veteran did not prefect his appeal. 5. The evidence received subsequent to the March 1984 rating decision which denied service connection for a right hip disorder when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right hip disorder, nor does it raise a reasonable possibility of substantiating that claim. 6. In December 1994, the RO denied service connection for PTSD. The Veteran did not perfect an appeal, and the decision is final. 7. Since the December 1994 rating decision, relevant service treatment records were associated with the claims file. These records existed at the time of the RO's December 1994 rating decision denying service connection for PTSD, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 8. In December 1994 and April 1995, the RO denied service connection for a hoarse voice, to include a larynx condition with altered voice. The Veteran did not appeal the decisions and they are final. 9. Since the December 1994 and April 1995 rating decisions, relevant service treatment records were associated with the claims file. These records existed at the time of the RO's December 1994 and April 1995 rating decisions denying service connection for a hoarse voice, to include a larynx condition with altered voice, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 10. In December 1994 the RO denied service connection for a gastrointestinal disorder. The Veteran did not perfect an appeal the decision and it is final. 11. Since the December 1994 rating decision, relevant service treatment records were associated with the claims file. These records existed at the time of the RO's December 1994 rating decision denying service connection for a gastrointestinal disorder, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 12. In December 1994 the RO denied service connection for gastroesophageal reflux. The Veteran did not perfect an appeal the decision and it is final. 13. Since the December 1994 rating decision, relevant service treatment records were associated with the claims file. These records existed at the time of the RO's December 1994 rating decision denying service connection for gastroesophageal reflux, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information 14. In December 1994, the RO denied service connection for joint pain. The Veteran did not appeal the decision and it is final. 15. Since the December 1994 rating decision, relevant service treatment records were associated with the claims file. These records existed at the time of the RO's December 1994 rating decision denying service connection for joint pain, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 16. In April 1995, the RO denied service connection for a psychiatric disorder, to include anxiety and depression. The Veteran did not appeal the decision and it is final. 17. Since the April 1995 rating decision, relevant service treatment records were associated with the claims file. These records existed at the time of the RO's April rating decision denying service connection for a psychiatric disorder to include anxiety and depression, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 18. In December 1994, the RO denied service connection for skin rashes. The Veteran did not perfect an appeal of the decision and it is final. 19. Since the December 1994 rating decision, relevant service treatment records were associated with the claims file. These records existed at the time of the RO's April rating decision denying service connection for skin rashes, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 20. In December 1994, the RO denied service connection for chronic fatigue syndrome. The Veteran did not appeal the decision and it is final. 21. Since the December 1994 rating decision, relevant service treatment records were associated with the claims file. These records existed at the time of the RO's April rating decision denying service connection for chronic fatigue syndrome, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 22. During the entire appeal period, the service-connected residuals of the right inguinal hernia were not recurrent. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a left hip disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 3. The evidence received since the final March 1984 rating decision that denied service connection for a right hip disorder is not new and material, and the claim for that benefit has not been reopened. 38 U.S.C.A. § 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. The criteria for reconsidering the Veteran's claim of entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 5. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a larynx condition with altered voice have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 6. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a gastrointestinal disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 7. The criteria for reconsidering the Veteran's claim of entitlement to service connection for gastroesophageal reflux have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 8. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a disorder manifested by joint pain have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 9. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 10. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a skin disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 11. The criteria for reconsidering the Veteran's claim of entitlement to service connection for chronic fatigue syndrome have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 12. The criteria for a rating greater than 10 percent for status post right inguinal repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7338 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Board finds that all notification and development action needed to render a fair decision on the claims decided herein has been accomplished and that adjudication of the claim, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board finds that there has been compliance with the assistance provisions set forth in the law and regulation. The Veteran has been afforded appropriate VA examinations for the disabilities adjudicated by this decision. The examinations were based on a review of the evidence in the claims file and on physical examination of the Veteran. The examiners provided the Board with pertinent evidence regarding the status of the hernia which is sufficient to accurately rate these issue on appeal. The examiner also provided an opinion regarding the etiology of the hepatitis C which was supported by adequate rationale. No additional pertinent evidence has been identified by the appellant as relevant to the issue decided herein for which attempts to obtain the evidence have not been made. Under the circumstances of this particular case, no further action is necessary to assist the appellant. Entitlement to Service Connection for Hepatitis C. In September 2000, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for hepatitis C. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In general, for service connection to be granted for hepatitis C, the evidence must show that a veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show a relationship between the claimed in-service injury and the Veteran's hepatitis C. Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02) (April 17, 2001). The evidence of record demonstrates that the Veteran was first diagnosed with hepatitis C while he was on active duty. A March 1998 service treatment record reveals that the Veteran was diagnosed with hepatitis B and C. With regard to risk factors, the Veteran reported at that time that he had heavy alcohol use in the past and an encounter with a prostitute in 1971-1972. He denied intravenous drug abuse and blood transfusions. An April 1999 report of a Medical Evaluation Board indicates the Veteran was found to have hepatitis B and C with an approximate date of origin of 1998. It was determined that the disease did not exist prior to active duty and was not aggravated by active duty. The Veteran denied intravenous drug use and transfusions but reported high risk sexual activity in the 1970's. The pertinent post-service medical evidence documents complaints of, diagnosis of and treatment for hepatitis C. For example, a February 2000 VA clinical record reveals the Veteran reported he was treated for hepatitis C while in the Army. An April 2000 VA clinical record includes the annotation that the Veteran has hepatitis C. A December 2000 VA clinical record reveals the Veteran had a history of hepatitis C. At that time, he denied drugs including intravenous drugs and also denied having transfusions. The pertinent diagnosis was hepatitis C. In December 2007, the Veteran was seen at a VA facility for treatment of his hepatitis C. The Veteran reported he was notified of the disease in 1998 while on active duty. The Veteran informed the clinician that he had served in an artillery unit during Desert Storm and that he was exposed to blood while bandaging injuries in the field. The Veteran denied tattoos, hemodialysis, and illegal drugs but reported a blood transfusion prior to 1992 and having approximately 50 sexual partners. The impression was Hepatitis C virus infection. The Veteran testified at a September 2009 RO hearing that he was exposed to other people's blood while bandaging them after their hands got caught up in artillery pieces. He also served in a transportation outfit where he was exposed to a lot of foreign national people getting their hands jammed or cut and having to put bandages on them in Bosnia. In June 2012, the Veteran submitted a statement indicating that he had been exposed to foreign nationals blood while in Germany. He had cuts on his hands and was exposed to their blood. While there is competent evidence of the presence of hepatitis C during active duty and competent evidence of the current existence of the disease, the Board finds service connection for hepatitis C must be denied as the preponderance of the competent evidence of record demonstrates that the Veteran's hepatitis C was the result of his use of illegal drugs. The Board finds the probative value of the Veteran's opinion regarding the etiology of his hepatitis C to be minimal. The Veteran has provided conflicting accounts of how he was possibly infected with the disease. At times, the Veteran has denied having a blood transfusion prior to 1992 and at other times, he informed health care professionals that he might have had a transfusion. During active duty, the Veteran denied being exposed to the blood of others. However, within the last few years, the Veteran has alleged that his hepatitis was the result of being exposed to the blood of soldiers on more than occasion when they were injured during active duty and the Veteran had to bandage them up. While the Veteran is competent to report that he had been exposed to the blood of others, the Board finds the credibility of these assertions to be lacking. The Veteran did not have a medical military occupational specialty and this is not consistent with the circumstances of the Veteran's military career. The Veteran has denied to health care professionals that he had used illegal drugs. However, numerous clinical records associated with the claims file reference a history of drug abuse, including cocaine abuse. Based on the above, the Board finds that no probative value should be placed on the Veteran's self-reported history of possible exposure to hepatitis C. The Veteran's opinion as to the etiology of his hepatitis C is without probative value. The report of the April 1999 Medical Evaluation Board indicates the Veteran was found to have hepatitis B and C with an approximate date of origin of 1998. It was determined that the disease did not exist prior to active duty and was not aggravated by active duty. This document indicates that the Veteran's hepatitis began during active duty. Significantly, the report of the Medical Evaluation Board does not address the question of whether the Veteran's drug use was the cause of the infection. There is medical evidence of record documenting that the Veteran was found to have a history of alcohol abuse and cocaine abuse and was hospitalized for this in 1994, prior to the date the hepatitis was diagnosed. The April 1999 Medical Evaluation Board is completely silent as to how the Veteran was infected with hepatitis C. The failure of the document to provide an etiology of the cause of the infection significantly reduces the probative value of the document with regard to the etiology of the disease. The report of the Medical Evaluation Board merely demonstrates that the Veteran was diagnosed with hepatitis C during active duty which was not found prior to active duty and was not aggravated by service. The document does not provide competent probative evidence demonstrating that the cause of the Veteran's hepatitis was something other than his drug abuse. The Board finds that there is competent, probative evidence of record which demonstrates that the Veteran's hepatitis C was the result of his illegal drug abuse. On VA examination in September 2007, it was noted that hepatitis C was diagnosed in 1997 while the Veteran was on active duty at Fort Benning, Georgia. It was reported that a urinalysis was positive for cocaine. The Veteran informed the examiner that he had a motor vehicle accident in 1981 with multiple injuries and he thought he might have had a blood transfusion at that time. The examiner wrote that there was no documentation of a blood transfusion. The Veteran denied tattoos, hemodialysis, or exposure to blood on his body in the past. The pertinent diagnosis was hepatitis C. The examiner opined that, since there was no documentation of any blood transfusion in 1981, it was "not at least as likely as not" that the hepatitis was related to a service accident. The hepatitis C was "more likely" related to substance abuse. The Board finds that significant probative weight should be attached to the report of the September 2007 VA examination. The examiner reviewed the evidence of record and diagnosed the existence of hepatitis C. The examiner then provided an opinion indicating that the hepatitis C was not due to active duty but rather was due to drug abuse. The Board notes that the factual assumption underlying the rationale is supported by the evidence of record that there was a history of cocaine abuse prior to the diagnosis of hepatitis C or the lack of evidence in the claims file of the Veteran undergoing a transfusion prior to the diagnosis. Based on the above, the Board finds the preponderance of the probative evidence demonstrates that the Veteran's hepatitis C is the result of drug abuse. Service connection cannot be granted for illegal drug abuse. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-91, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse. Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d) (2012). Based on the above, the Board finds that service connection is not warranted for hepatitis C. New Material Criteria In addition to new and material evidence, 38 C.F.R. § 3.156(c) provides that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Further, 38 C.F.R. § 3.156(c)(i)(3) provides that an award made based all or in part on these records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. Whether New and Material Evidence Has Been Received to Reopen the Claim of Entitlement to Service Connection for a Right Hip Disorder. In March 1984, the RO denied service connection for residuals of trauma to the right hip. The RO found that there was no evidence showing the injury occurred during active duty. The Veteran was provided with notice of the March 1984 rating decision in April 1984. The Veteran submitted a notice of disagreement in April 1984. A statement of the case was issued in May 1984. The Veteran did not perfect this appeal by the submission of a timely substantive appeal. The Board finds the March 1984 rating decision is final. 38 U.S.C.A. § 7105. The evidence of record at the time of the March 1984 rating decision which denied service connection for a right hip disorder consists of service treatment records, private medical records, the report of a VA examination, and an administrative determination. A January 1983 letter from a private physician reveals the Veteran was involved in a motor vehicle accident which resulted in a fracture of the right acetabuluma and a fracture of the pelvis. He was advised to have minimal weight bearing on the right hip for two weeks. The report of an October 1983 VA examination indicates the Veteran was involved in a motor vehicle accident in 1982. An X-ray of the right hip was interpreted as failing to demonstrate recent fractures, dislocation, or destructive processes. An administrative decision dated in March 1984 resulted in a determination that the motor vehicle accident the Veteran had in January 1982, did not occur while the Veteran was on active duty. The RO denied service connection for a right hip disorder in March 1984, finding that there was no evidence showing the injury occurred during active duty. The pertinent evidence added to the record subsequent to the March 1984 rating decision which denied service connection for a right hip disorder consists of VA treatment records, the Veteran's testimony, and service treatment records created after the March 1984 decision. The Board finds that the VA treatment records received subsequent to the March 1984 rating decision are not new and material. The records document intermittent complaints, diagnosis and treatment for right hip problems. But none of these records indicates that the hip disorder was etiologically linked to the Veteran's active duty service. In April 1997, the Veteran complained of bilateral hip pain. The assessment as bilateral degenerative joint disease. A February 1994 VA orthopedic examination resulted in a pertinent diagnosis of a normal hip examination. No specific hip was referenced. In February 2000, the Veteran informed a clinician he had right hip pain. It was noted that the Veteran had chronic degenerative joint disease of the hips and knees. In June 2005, the Veteran complained of chronic mild hip pains. The pertinent assessment was bilateral hip pain with mild degenerative joint disease. In February 2006, the Veteran informed a clinician that he had been in a motor vehicle accident in January 2006 and had diffuse arthralgias ever since. He complained of problems with his hip. In July 2008, the Veteran reported worsening right hip pain, which developed after moving furniture. There was a history of osteoarthritis, with previous hip problems. Physical examination was conducted. The assessment was right hip arthralgia. The Board finds the clinical records associated with the claims file subsequent to the March 1984 rating decision do not show that the current right hip complaints were etiologically linked to the Veteran's active duty service. Additional evidence, which consists of records of post-service treatment that do not indicate in any way that a condition is service-connected, is not new and material. Cox v. Brown, 5 Vet. App. 95, 99 (1993). These records do not satisfy the definition of new and material evidence. Service treatment records were generated by the Veteran's periods of active duty service after March 1984. A medical Board dated in April 1999 reveals the Veteran reported a history of hip pain dating back to the early 1990's which developed during Desert Storm after a fall which slowly increased in symptomatology. An x-ray of the right hip was interpreted as revealing mild degenerative changes. The pertinent diagnosis was degenerative joint disease of the hips. In March 2000, evaluation was conducted in connection with the Veteran's military service. He complained of hip pain. The past medical history was noted to be remarkable for degenerative joint disease of the hips. The service treatment records which were generated subsequent to the March 1984 rating decision which denied service connection for a right hip disorder do not satisfy the definition of new and material evidence. This evidence documents current complaints of right hip problems but does not indicate that the right hip disorder is due to the Veteran's active duty service. The Veteran testified at a RO hearing in September 2009 that he injured his right hip in 1991. He opined the pain was a 7 out of 10. The Board finds the Veteran's testimony does not satisfy the definition of new and material evidence for purposes of this decision. The fact that the Veteran alleged he injured his right hip during active duty was of record at the time of the March 1984 rating decision. This evidence is duplicative of evidence previously considered. The Board finds that none of the evidence received subsequent to the March 1984 rating decision which denied service connection for a right hip disorder satisfies the definition of new and material. 38 C.F.R. § 3.156(a). The claim of entitlement to service connection for a right hip disorder may not be reopened. Whether New and Material Evidence Has Been Received to Reopen the Claim of Entitlement to Service Connection for a Left Hip Disorder, PTSD, a Disorder of the Larynx with Hoarseness and Voice Alteration, a Gastrointestinal Disorder, Gastroesophageal Reflux, a Joint Pain Disorder, Depressive Disorder with Insomnia, a Skin Disorder and for Chronic Fatigue Syndrome. In December 1994 and April 1995, the RO denied service connection for these claims of entitlement to service connection. The Veteran was provided with notification of the decisions in January 1995 and May 1995 respectively. The Veteran did not submit a notice of disagreement with the denials of service connection for a disorder of the larynx with hoarseness and voice alteration, a joint pain disorder, depressive disorder with insomnia or for chronic fatigue syndrome. The Veteran did submit a notice of disagreement with the denial of service connection for a left hip disorder, for skin rashes, for gastrointestinal problems and for PTSD. After the Veteran submitted his notice of disagreement with these determinations, however, he failed to perfect the appeal by the submission of a substantive appeal after an October 1995 statement of the case was issued. The Board finds the December 1994 and April 1995 rating decisions are final. 38 U.S.C.A. § 7105(c) (West 2002). In 1999, additional service treatment records were associated with the claims file. The newly submitted service treatment records are pertinent to the issues referenced above. These records existed at the time of the RO's December 1994 and April 1995 rating decisions; and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. Accordingly, reconsideration of the claims seeking entitlement to service consideration for a left hip disorder, PTSD, a disorder of the larynx with hoarseness and voice alteration, a gastrointestinal disorder, gastroesophageal reflux, a joint pain disorder, depressive disorder with insomnia, a skin disorder and for chronic fatigue syndrome, is warranted. 38 C.F.R. § 3.156(c). General Increased Rating Criteria Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Entitlement to a Rating in Excess of 10 Percent for Residuals of a Right Inguinal Hernia. The Veteran is claiming entitlement to an increased rating for residuals of his right inguinal hernia which is currently evaluated as 10 percent disabling under Diagnostic Code 7338, which provides that small inguinal hernia, reducible, or without true hernia protrusion, is rated noncompensably disabling. An inguinal hernia that is not operated, but is remediable, is rated noncompensably disabling. A postoperative recurrent inguinal hernia, which is readily reducible, and well supported by truss or belt, is rated as 10 percent disabling. A small inguinal hernia, which is postoperative recurrent, or is unoperated irremediable, and not well supported by truss, or not readily reducible, is rated as 30 percent disabling. A large inguinal hernia, which is postoperative recurrent, that is not well-supported under ordinary conditions and not readily reducible, when considered inoperable, is rated as 60 percent disabling. The Veteran underwent right inguinal hernia repair in April 1999. Ten days later, it was noted that the repair was doing well. In June 2000, the Veteran reported a history of right inguinal hernia repair. He reported pain in his testicle and also at the site of the surgery. The Veteran also reported chronic numbness and erectile dysfunction. In July 2000, the RO granted service connection for residuals of a right inguinal hernia repair and assigned a 10 percent evaluation effective from September 16, 1999 under 38 C.F.R. § 4.114, Diagnostic Code 7338. In January 2004, the Veteran complained of inguinal pain which had been present three to four times per week for over a year. The pain increased with activity. He also reported decreased libido for three years with decreased erections. In February 2004, the Veteran reported right groin pain which increased with activity. He had undergone a right inguinal hernia repair. Physical examination revealed no bulge. There was no recurrence of the hernia. The assessment was right groin pain, secondary to scar tissue pulling with activity. On VA examination in September 2007, the Veteran reported he had a hernia repaired in 1998. At the time of the examination, no hernia was present including no recurrence of the hernia in the right inguinal area. There was a 6 centimeter scar over the right inguinal area. The scar was pigmented but without pain or tenderness. The scar was superficial, not deep and not adherent. The scar was not elevated and was without ulceration or breakdown. The scar was not productive of any functional limitation. The finding was that the residual of the hernia operation was a scar, which was not causing any disability. In June 2008, the Veteran reported problems with pain in the right groin area. The Veteran had surgery in the area in the past. Physical examination revealed the right inguinal area had a slightly enlarged small hard knot under the skin. The pertinent impression was groin pain, with previous hernia repair in this area. An August 2008 CT examination of the hernia site was interpreted as being inconclusive. The Veteran testified in September 2009 that he experienced constant pain in the area where his hernia was repaired. He reported that a boil started to develop there. He was not provided with any supportive belt but was reportedly informed that he was restricted in lifting to two or three pounds. On VA examination in March 2010, it was noted that the Veteran underwent right inguinal hernia repair in 1996. The Veteran reported intermittent pain in the right inguinal area. Physical examination revealed no evidence of the hernia. A well-healed, non-tender scar was noted which was immeasurable. The examiner opined that the Veteran would be only minimally to mildly affected by the disability. The Board finds that a rating in excess of 10 percent is not warranted for residuals of the right inguinal hernia repair as there is no competent evidence documenting that the post-operative residuals of the hernia are recurrent. This is a requirement of 30 and 60 percent ratings under Diagnostic Code 7338. Physical examinations conducted during the pendency of the appeal all resulted in determinations that the right inguinal hernia was not recurrent. In fact, the 10 percent disability evaluation assigned for the hernia is in excess of what the symptomatology dictates. With regard to skin and scar residuals, the Board notes that changes have recently been made to 38 C.F.R. § 4.118. With respect to the pre-2008 criteria, the following diagnostic codes are relevant: Under 38 C.F.R. § 4.118 , Diagnostic Code 7801, scars, other than head, face, or neck, that are deep or that cause limited motion: area or areas exceeding 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), warrant a 10 percent rating. Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. Note (2): a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, a 10 percent rating is warranted for: scars, other than head, face, or neck, that are superficial and that do not cause limited motion: Area or areas of 144 square inches (929 sq. cm.) or greater. Under 38 C.F.R. § 4.118, Diagnostic Code 7803, a 10 percent rating is warranted for superficial and unstable scars. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating for scars that are superficial and painful on examination. Under 38 C.F.R. § 4.118, Diagnostic Code 7805, other scars are rated on limitation of function of the affected part. The notes pertaining to these regulations (re-numbered) are shown below: (1) Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. (2) A deep scar is one associated with underlying soft tissue damage. (3) A superficial scar is one not associated with underlying soft tissue damage. (4) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under the revised Diagnostic Code 7801, scars other than head, face, or neck, that are deep or that cause limited motion warrant the assignment of a 10 percent rating for an area or areas exceeding 6 square inches (39 sq. cm). 38 C.F.R. § 4.118, Diagnostic Code 7801(2012). The revised Diagnostic Code 7804 allows for compensable evaluation for unstable or painful scars, regardless of the size. Note (1) of Diagnostic Code 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (3) makes clear that a scar rated under Diagnostic Code 7802 may receive an evaluation under Diagnostic Code 7804 when appropriate. For a 10 percent rating under the revised Diagnostic Code 7804, there must be a showing of one or two scars that are unstable or painful. For a 20 percent rating, there must be three or four scars, and for a 30 percent rating, there must be five or six scars. Diagnostic Code 7805 has not changed, providing that scars may be rated on limitation of function of the affected part. The Board notes that the Veteran has complained of pain at the site of the hernia surgery. The evidence regarding whether the service-connected residuals of the surgery to repair the right inguinal hernia is conflicting regarding the scar. While the Veteran has reported, on occasion, that he experiences pain at the site of the hernia repair, the majority of the physical examinations conducted for the site indicated that the scar was not tender. In January 2004, a clinician attributed the Veteran's complaints of right groin pain to the surgical scar. In July 2008, the Veteran complained of pain in the right groin area and physical examination revealed a small knot. However, the surgical scar resulting from the procedure was not described as tender or painful. Physical examinations conducted in September 2007 and March 2010 both resulted in determinations that the residual scar from the hernia surgery was nontender. Based on the above, the Board finds the preponderance of the evidence demonstrates that the residual scar from the hernia surgery is not productive of compensable symptomatology. The Board further notes, as set out above, that the current 10 percent evaluation assigned for the residuals of the right inguinal hernia were apparently assigned based on the Veteran's complaints of pain as he does not demonstrate any symptomatology for a compensable evaluation under Diagnostic Code 7338. To assign a separate compensable evaluation based on the presence of a tender and painful scar would constitute impermissible pyramiding as the Veteran would be compensated twice for his reports of pain at the site of the surgery. Extraschedular Consideration for the Hernia Claim Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that 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. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected residuals of the right inguinal hernia repair were evaluated under Diagnostic Code 7338, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. The Veteran's service-connected residuals of the right inguinal hernia repair are manifested by complaints of pain but without evidence of recurrence of the hernia. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 10 percent disability rating. Evaluations in excess of 10 percent are provided for certain manifestations of the hernia, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for a 10 percent rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.114, Diagnostic Code 7338. ORDER Service connection for hepatitis C is denied. New and material evidence not having been received, the claim of entitlement to service connection for a right hip disorder has not been reopened and the appeal is denied. The claims of entitlement to service connection for sexual dysfunction to include as secondary to service-connected right inguinal hernia; for left hip disorder; for PTSD; for a disorder of the larynx with hoarseness and voice alteration; for a gastrointestinal disorder; for gastroesophageal reflux; for a joint pain disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; for depressive disorder with insomnia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; for a skin disorder; and for chronic fatigue are to be reconsidered on the merits. A rating in excess of 10 percent for residuals of a right inguinal hernia is denied. REMAND As set out above, the Board has determined that the claims of entitlement to service connection for a left hip disorder, PTSD, a disorder of the larynx with hoarseness and voice alteration, a gastrointestinal disorder, a joint pain disorder, depressive disorder with insomnia, a skin disorder and chronic fatigue syndrome must be reconsidered based on receipt of pertinent service treatment records which were received subsequent to the RO decision which denied service connection for the disorders. The RO must adjudicate the claims on a de novo basis. The Veteran is claiming entitlement to a TDIU. As the outcome of this determination depends, in part, on whether service connection will be granted for the issues being remanded by this decision, the Board finds that the TDIU claim is inextricably intertwined with the service connection claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Veteran is claiming entitlement to a temporary total evaluation due to surgery of the throat under 38 C.F.R. § 4.29. The outcome of this claim hinges on the question of whether service connection will be granted for the claimed disorder of the larynx with hoarseness and voice alteration which is being remanded. The Board finds the claim of entitlement to a temporary total evaluation due to surgery of the throat under 38 C.F.R. § 4.29 is inextricably intertwined with the claim of entitlement to service connection for the larynx disorder and must also be remanded. In August 2000, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for chronic reflux disease. In December 2005, the RO provided a duty to assist letter which incorrectly informed the Veteran that a claim of entitlement to service connection for chronic reflux had been denied in January 1995. Significantly, the Board finds that a December 1994 rating decision denied service connection for a gastrointestinal problems but did not deny service connection for gastroesophageal reflux. In October 2007, the RO denied service connection for chronic reflux as well as for a gastrointestinal condition. This is the first time the issue of entitlement to service connection for chronic reflux was adjudicated. The Board finds the reflux claim to be separate and distinct from the general gastrointestinal claim and notes the RO addressed both service connection for a gastrointestinal issue and also service connection for gastroesophageal reflux during the appeal and treated these as separate claims. In February 2008, the Veteran submitted a notice of disagreement, in part, with the denial of service connection for chronic reflux. A statement of the case was issued in September 2008 and the Veteran perfected this appeal with the submission of a substantive appeal in October 2008. Unfortunately, the RO again issued a letter to the Veteran in November 2012 incorrectly informing the Veteran that his claim of entitlement to service connection for chronic reflux that was denied in November 2007 was not appealed. The RO then informed the Veteran that he had to submit new and material evidence to reopen the claim. Thereafter a January 2013 supplemental statement of the case also addressed the issue as whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for gastroesophageal reflux. The Board finds that the Veteran must be provided with the proper duty to assist letter which informs him that his service connection claim for gastroesophageal reflux is not based on a reopened claim. The RO must also adjudicate the claim as a direct service connection claim without the requirements for reopening claims. In August 2000, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for sexual dysfunction claimed as secondary to a hernia operation. This was the first time the claim was submitted. In October 2007, the RO correctly denied service connection for sexual dysfunction on a de novo basis. However, after the Veteran perfected an appeal with the October 2007 rating decision, subsequent supplemental statements of the case address the issue on appeal as being whether new and material evidence has been received to reopen the claim of entitlement to service connection for sexual dysfunction and adjudicated it as such. In a November 2011 letter, the RO wrongly informed the Veteran that the claim was subject to a prior final denial and that new and material evidence had to be submitted to reopen the claim. The Board finds that the Veteran must be provided with the proper duty to assist letter which informs him that his service connection claim for sexual dysfunction is not based on a reopened claim. The RO must also adjudicate the claim as a direct service connection claim without the requirements for reopening claims. The Veteran is claiming entitlement to service connection for a disorder manifested by upper extremities numbness and weakness. A VA clinical record dated in May 2012 references the fact that the Veteran is seeing a private chiropractor who reportedly informed the Veteran that he may have a pinched nerve. A review of the claims file demonstrates that no records from any private chiropractor have been associated with the claims file. The Board finds that these records should be obtained as they are potentially pertinent to the claim of entitlement to service connection for a disorder manifested by upper extremity numbness and weakness. . Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The RO must send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The Board is particularly interested in obtaining the treatment records from the Veteran's private chiropractor. 2. Following the completion of the above-requested development, readjudicate the Veteran's claim of entitlement to service connection for a left hip disorder, PTSD, a larynx disorder, a gastrointestinal disorder, gastroesophageal reflux, a joint pain disorder, depressive disorder, a skin disorder, chronic fatigue syndrome, sexual dysfunction and a disorder manifested by muscle weakness and numbness of the upper extremities. The RO should also adjudicate the TDIU claim and the claim for a temporary total rating. If any of the claim remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs