Citation Nr: 18151289 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 09-32 418A DATE: November 16, 2018 ORDER Entitlement to an increased rating of 10 percent, but no higher, prior to September 22, 2009 for ilioinguinal neuropathy is granted. Entitlement to an increased rating in excess of 10 percent from September 22, 2009 for ilioinguinal neuropathy is denied. Entitlement to a compensable rating for status-post right inguinal hernia repair is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 1, 2011 is granted. Entitlement to special monthly compensation (SMC) at the housebound rate from December 1, 2011 is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to TDIU prior to December 1, 2011 is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his ilioinguinal neuropathy was severe prior to September 22, 2009. 2. The Veteran has been assigned the maximum rating for his ilioinguinal neuropathy during the entire appeal period. 3. The Veteran is postoperative for an inguinal hernia, and he has not had any recurrent inguinal hernias during the appeal period. 4. From December 1, 2011, the Veteran’s service-connected anxiety disorder prevented him for securing and following substantially gainful occupation. 5. Based on the Board’s award of TDIU due to the Veteran’s service-connected anxiety disorder from December 1, 2011, the Veteran has a single service-connected disability rated at 100 percent plus an additional service-connected disability having a rating of 60 percent involving a different anatomical segment or bodily system from December 1, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 10 percent, but no higher, prior to September 22, 2009 for ilioinguinal neuropathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8530 (2017). 2. The criteria for entitlement to an increased rating of 10 percent from September 22, 2009 for ilioinguinal neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.124a, Code 8530 (2017). 3. The criteria for entitlement to a compensable rating prior to September 22, 2009 for ilioinguinal neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Code 7338 (2017). 4. The criteria for entitlement to TDIU from December 1, 2011 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). 5. The criteria for entitlement to SMC at the housebound rate from December 1, 2011 have been met. 38 U.S.C. §§ 1114(s), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1999 to October 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2007, March 2010, and September 2013 rating decisions by the Department of Veterans Affairs (VA). The issues of entitlement to increased ratings for ilioinguinal neuropathy and status-post right inguinal hernia repair and entitlement to TDIU were previously remanded by the Board in June 2012 for further development. In June 2012, the Veteran testified at a Board hearing before a different Veterans Law Judge (VLJ); a transcript of that hearing is of record. That VLJ is no longer at the Board. In May 2018 and July 2018, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Veteran initially requested a second hearing, see July 2018 Report of General Information, but then withdrew that request in a written statement. See July 2018 correspondence (incorrectly dated July 2017). Accordingly, the Board finds that the Veteran’s request for a second Board hearing has been withdrawn, and it will proceed with adjudication. During the appeal period, the Veteran’s rating for ilioinguinal neuropathy was increased to 10 percent, effective September 22, 2009. See March 2010 rating decision. The Board must consider entitlement to SMC when fairly raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991). The issue of entitlement to SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) has been raised by the record. The Board has accordingly added entitlement to SMC as an issue on appeal. The issue of entitlement to an increased rating in excess of 10 percent for status-post pneumothorax with reactive airway disease was not appealed by the Veteran in his September 2009 substantive appeal. Thus, that issue is not before the Board. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). 1. Entitlement to a compensable rating prior to September 22, 2009 and a rating in excess of 10 percent thereafter for ilioinguinal neuropathy. The Veteran’s ilioinguinal neuropathy is rated pursuant to Code 8530, for paralysis of the ilioinguinal nerve. Pursuant to Code 8530, a noncompensable rating is assigned for mild or moderate paralysis and a (maximum) 10 percent rating is assigned for severe to complete paralysis. 38 C.F.R. § 4.124a. During an August 2007 VA examination, the Veteran reported that he had persistent numbness with intermittent pain in the right inguinal region. He reported flare-ups occurring two to three times a week lasting from 15 minutes to two hours in duration, during which his pain was rated as a five to nine on a scale of one to ten. He had 50 to 90 percent limitation of function of his daily activities during a flare-up. The examiner reported that he had mild neuropathy at the time of the examination. See August 2007 VA examination. During a January 2009 VA examination, the Veteran reported that he had pain on a daily basis and had difficulty sitting in the same position during class due to his pain. The examiner noted the Veteran had “significant” ilioinguinal neuropathy since his right hernia repair during service and diagnosed “severe” ilioinguinal neuropathy. See January 2009 VA examination. After resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran had severe ilioinguinal neuropathy prior to September 22, 2009. In particular, the Board attaches significant probative weight to the January 2009 VA examiner’s note that the Veteran had “significant” ilioinguinal neuropathy since his military service. While the August 2007 VA examiner opined that the Veteran had mild neuropathy, the examiner emphasized that it was mild only at the present time. Thus, the opinion is not contradictory to the January 2009 VA examiner’s opinion. Because the evidence reflects severe ilioinguinal neuropathy, a rating of 10 percent is warranted prior to September 22, 2009. Given the above, the Veteran’s ilioinguinal neuropathy is now rated at 10 percent disabling, pursuant to Code 8530, for the entire appeal period. A 10 percent rating is the maximum rating a Veteran can receive pursuant to this Code. See 38 C.F.R. § 4.124a. Accordingly, he is not entitled to a higher schedular rating at any point during the appeal period and an increased rating must be denied. The Veteran has stated an extraschedular rating for this disability is warranted because a 10 percent rating “does not reflect the true nature of this condition.” See November 2011 statement. The Board notes that it did not previously determine that a referral to the Director of Compensation Service (Director) was warranted, but instead directed the Agency of Original Jurisdiction (AOJ) to consider whether referral was required. See June 2012 Board remand. The AOJ referred this issue to the Director, who determined that an extraschedular rating was not appropriate. See August 2017 administrative decision. The symptoms of the Veteran’s ilioinguinal neuropathy have been severe pain, paresthesias, burning sensation, and limited mobility. See, e.g., July 2011 VA examination; February 2009 correspondence. These symptoms are contemplated in the criteria for Code 8530, which involves extremely broad criteria reflecting the severity of the Veteran’s disability. Indeed, even extremely severe symptoms—to include up to complete paralysis of the inguinal nerve—are contemplated in the rating criteria. See 38 C.F.R. § 4.124a, Code 8530. Functional loss, such as limited mobility, is also contemplated in the rating criteria because it can be considered in the criteria for “mild,” “moderate”, “severe,” and “complete” paralysis. Given that the rating schedule contemplates the severity of the pain, paresthesias, burning sensation, and functional loss associated with the Veteran’s ilioinguinal neuropathy, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. In short, there is nothing exceptional or unusual about the Veteran’s ilioinguinal disability because the rating criteria reasonably encompass his disability level and symptoms. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Accordingly, an extraschedular rating is not warranted. 2. Entitlement to a compensable rating for status-post right inguinal hernia repair. The Veteran’s status-post right inguinal hernia repair is rated pursuant to Code 7338, for inguinal hernias. Pursuant to Code 7338, a noncompensable rating is assigned for hernias that are small, reducible, or without true hernia protrusion, or not operated on but remediable. A 10 percent rating is assigned for hernias that are postoperative recurrent, readily reducible and well supported by truss or belt. A 30 percent rating is assigned for hernias that are small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. A (maximum) rating of 60 percent is assigned for hernias that are large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. See 38 C.F.R. § 4.114. The Veteran has consistently reported pain associated with his status-post right inguinal hernia repair throughout the appeal period. See, e.g., March 2007 correspondence. During an August 2007 VA examination, the examiner opined that the Veteran did not have recurrence of his right inguinal hernia and there were no masses palpable in the inguinal area to cough impulse. See August 2007 VA examination. In July 2010, the Veteran reported that his pain physician did not understand why he would need a truss belt and that a truss belt would only be issued pre-surgery. See July 2010 correspondence. An April 2013 VA examiner found that the Veteran did not have a hernia. See April 2013 VA examination. VA treatment records reflect the Veteran did not have any obvious hernias. See, e.g., February 2012 VA treatment records. After review of the record, the evidence is consistent that the Veteran has not had an inguinal hernia during the appeal period. His report from his physician that he did not need a truss belt is consistent with the finding that the Veteran does not have an inguinal hernia. The criteria for a compensable rating requires the presence of an inguinal hernia, even if post-operative. Thus, because the Veteran is post-operative and without any recurrent hernias, he is not entitled to a compensable rating. The Board acknowledges that the Veteran has pain due to his hernia repair during service, but the criteria require that the Veteran have a hernia during the appeal period to be compensated. The Board notes that his pain is frequently attributed to his ilioinguinal neuropathy, see, e.g., August 2007 VA examination, and he is receiving compensation for those symptoms. Thus, the Veteran is not entitled to a compensable rating. It is not appropriate to look to other potentially applicable Codes to assign a higher rating because the Veteran’s assigned Code is not by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). Accordingly, the matter must be denied. Entitlement to TDIU from December 1, 2011. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Upon consideration of the evidence of record, the Board finds that the Veteran meets the schedular criteria as of December 1, 2011, which is also the effective date for the grant of service connection for the Veteran’s anxiety disorder. During the appeal period, the Veteran has a history of repeated in-patient treatment for opioid abuse. See, e.g., February 2012 VA treatment records. He later reported that he had been severely addicted to opioids since September 2013 and continued to receive periodic in-patient and frequent out-patient treatment. See February 2015 VA examination. A VA examiner opined that the Veteran’s opioid use was secondary to his service-connected medical conditions and anxiety symptoms, and that his anxiety and severe heroin use had impacted his ability to relate effectively with other people. The examiner stated the Veteran had a limited ability to work collaboratively with others and would be prone to episodes of overwhelming anxiety. See id. A later VA examiner noted the Veteran continued to receive in-patient treatment, did not form relationships, and would have difficulty interacting with coworkers and managing the stress of demanding job situations. See March 2017 VA examination. Although the Social Security Administration (SSA) found that the Veteran was not unable to work, see April 2014 SSA records, the Board is not bound by that determination. Thus, the Board finds that the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected anxiety disorder from December 1, 2011 due to his frequent in-patient and out-patient treatment and his inability to function in a work-like setting. As a result, TDIU is warranted. Entitlement to SMC at the housebound rate from December 1, 2011. SMC at the housebound rate is payable if a Veteran has a single service-connected disability rated at 100 percent and an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a 100 percent rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Board has awarded TDIU due to the Veteran’s service-connected anxiety disorder from December 1, 2011. As such, the first element of entitlement to SMC at the housebound rate is shown. The Veteran is service-connected for status-post pneumothorax with reactive airway disease at 60 percent, effective August 21, 2007. Thus, the requirements for SMC at the housebound rate have been met, and SMC from December 1, 2011 is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. Diagnostic imaging has reflected degenerative changes and disc bulging in the Veteran’s lumbar spine. See, e.g., September 2012 VA treatment records. He reported that his spine disabilities are related to a parachute accident in service. See July 2012 VA treatment records. He also stated that he has had continuous symptoms from the date of his initial injury. See July 2015 substantive appeal. Because there are medical questions remaining, remand for a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to TDIU prior to December 1, 2011. The Veteran noted that he was receiving vocational rehabilitation services from VA. See November 2012 VA treatment records. Such records are in VA’s constructive possession, but are not of record. As a result, remand is necessary. The matter is REMANDED for the following action: 1. Obtain copies of VA treatment records for the Veteran’s disabilities from February 2018 to the present. 2. Obtain copies of the Veteran’s VA Vocational Rehabilitation and Employment records. 3. After the development in the first and second instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all lumbar spine disabilities present during the appeal period (from December 2011). (b.) For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The Veteran’s report of continuous symptoms since service must be discussed. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel