Citation Nr: 18142738 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-29 609 DATE: October 16, 2018 REMANDED Entitlement to a compensable rating for right inguinal hernia repair, and residuals to include scars, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to a compensable rating for right inguinal hernia repair, and residuals to include scars. The Veteran has appealed a May 2013 rating decision that granted service connection for residuals of a right inguinal hernia repair and assigned a 0 percent rating. He has expressed disagreement with the initial 0 percent rating assigned. Specifically, the Veteran contends that the VA rating schedule does not adequately consider that the “mesh” used in his hernia repair surgery came into use after the VA Rating Schedule was written and that complications from using the “mesh” are not considered by the rating schedule. The Veteran also contends that his most recent VA examination of January 2016 is inadequate as it did not consider all his symptoms and disabilities. In addition, the Veteran has raised the issue of entitlement to extra schedular consideration. In a February 2013 statement in support of claim, the Veteran asserted that since the hernia surgery he had been unable to achieve an erection because the “mesh” limited the blood supply to his penis. He also stated that he experienced pain upon having a bowel movement due to the “mesh.” Further, the Veteran asserted that he began wearing a hernia belt for the disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can be practicably determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether raised by the Veteran or not, as well as the entire history of the Veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. Generally, rating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each Veteran’s circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. When rating musculoskeletal disabilities, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating that is commensurate with the Veteran’s average earning capacity impairment due to the service connected disorder. 38 C.F.R. § 3.321(b). There is a three pronged test for determining whether extra-schedular consideration is warranted. Thun v. Peake, 22 Vet. App. 111 (2008). First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for a service-connected disability are inadequate. In this regard, the Board must compare 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. If the rating criteria reasonably describe the Veteran’s disability level and symptomatology, then the Veteran’s disability picture is contemplated by the Rating Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Second, if the schedular criteria are found to be inadequate to evaluate the Veteran’s disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. If so, then under the third step of the inquiry the case must be referred for a determination of whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra schedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The question of an extra schedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an extra schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra schedular evaluation when the issue either is raised by the Veteran or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The issue of whether the Veteran is entitled to a compensable rating for a service connected right inguinal hernia disability is remanded for additional development and a new VA examination. The issue of whether an extra schedular rating is warranted is inextricably intertwined with the increased rating claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the Board must defer consideration of the extra schedular issue pending completion of the action requested below regarding the claim for entitlement to a compensable rating for a right inguinal hernia disability. 2. Entitlement to TDIU. A claim for a TDIU is part of an increased rating claim, when a TDIU claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that in a July 2015 statement in support of claim attached to a Form 9 the Veteran stated that, because his hernia disability worsened over time, he had been unable to continually hold down a job for more than six months. In a February 2013 statement in support of claim, the Veteran listed multiple contentions regarding his employment difficulties related to his hernia claim. Thus, the Veteran’s statements suggest an allegation of unemployability. The Agency of Original Jurisdiction has not adjudicated the claim for TDIU in the first instance. Specifically, the Veteran must be provided with the requisite notice regarding what is necessary to substantiate a claim for entitlement to TDIU. A request should be made that the Veteran complete and return VA Form 21 8940, the application for increased compensation based on unemployability, and invite him to submit any additional evidence in support of the claim. The matter is REMANDED for the following actions: 1. Send the Veteran compliant notice regarding what is necessary to substantiate a claim of entitlement to TDIU and invite him to submit additional evidence in support of the claim. Additionally, request that the Veteran complete VA Form 21 8940, the application for increased compensation based on unemployability. 2. Obtain all VA treatment records not already of record and associate them with the claims file. 3. After obtaining the appropriate authorizations from the Veteran, obtain all private treatment records identified by the Veteran that are not already of record. 4. Schedule the Veteran for a VA examination to determine the current severity of his service connected right inguinal hernia disability and any residuals, including scars. The examiner must review the claims file, and should note that review in the report. All pertinent symptomatology and findings should be reported in detail, and any indicated diagnostic tests and studies should be accomplished. Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, the examiner is requested to: (a.) For right and left inguinal hernia, the examiner should state whether each has been operated or in not operated, but remediable. For each, the examiner should state whether either hernia is small, reducible, or without true hernia protrusion. (b.) State whether or not the Veteran has a recurrent postoperative hernia of either side that is readily reducible and supported by the use of a truss or belt. (c.) State whether or not the Veteran has a small hernia of either side that is postoperative and recurrent, or unoperated and remediable, is not well-supported by truss, or or not readily reducible. (d.) State whether the Veteran has a large hernia of either side that is postoperative and recurrent, that is not well-supported under ordinary conditions, is not readily reducible, or considered inoperable. (e.) Provide measurements of any surgical scars in the hernia area. State whether any scars are deep or superficial and linear or nonlinear. State whether any scars are painful or unstable, or result in any additional loss of function. (f.) Provide information regarding any current use of a hernia belt or truss. (g.) Determine whether there is any current erectile dysfunction disability related to the hernia disability. (h.) Determine whether there is evidence of marked interference with employment or frequent periods of hospitalization. (i.) Opine whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disability, consistent with his training and experience. If the Veteran is felt capable of employment, the examiner should state what type of employment and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel