Citation Nr: 18161024
Decision Date: 12/28/18	Archive Date: 12/28/18

DOCKET NO. 08-32 345
DATE:	December 28, 2018

REMANDED

Entitlement to an initial compensable disability rating for left inguinal hernia, status post herniorrhaphy, to include on an extraschedular basis, is remanded.

REASONS FOR REMAND

The Veteran had active service in the Navy from February 1988 to February 2008.

In a letter received November 5, 2018, the Veteran’s representative made a request for records under 38 U.S.C. §§ 5701(b)(1) and 5702; the Freedom of Information Act (FOIA), 5 U.S.C. § 552; and 38 C.F.R. §§ 1.525 and 1.526.  This request was specifically limited to any development done subsequent to the May 2018 CAVC remand.  As there has been no development completed since that remand, there are no records responsive to this request.  If and when any development is completed, this request will be addressed.   

1. Entitlement to an initial compensable disability rating for left inguinal hernia, status post herniorrhaphy is remanded.

The Veteran’s left inguinal hernia, status post herniorrhaphy does not meet the schedular requirements for a higher rating under the relevant diagnostic codes.  Specifically, the relevant diagnostic code is 7338, for inguinal hernia.  All compensable ratings under this diagnositic code require evidence of postoperative recurrence of a hernia, in addition to other factors.  While there is evidence to support other factors such as the use of a support belt, the Veteran’s medical records from service to the present contain no finding of a recurrent hernia.  To the contrary, there are multiple findings of no recurrence, including by treating physicians as well as VA examiners of January 2008, March 2012, and August 2014.

However, in medical records and statements from right after his herniography to the present, the Veteran reported symptomatology and functional impairment that is not reasonably contemplated by the relevant diagnostic codes.  Medical records, including an August 2014 VA examination, suggest he has experienced marked interference with employment due to service-connected disability.  Specifically, the Veteran has consistently reported a pulling sensation in his left lower abdomen, sometimes developing into a sharp stabbing pain, when he bends over or stands up quickly.  Medical advice of record is to avoid heavy lifting and any movement that causes symtpoms.  The Veteran’s claim for an increased rating is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

The matter is REMANDED for the following action:

1. Refer the Veteran’s claim for an increased rating for left inguinal hernia, status post herniorrhaphy, to VA’s Director of Compensation Service for extraschedular consideration.

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2. Upon receipt of the Director of Compensation Service’s recommendation, provide copies of any evidence obtained to the Veteran and his attorney and then reconsider the Veteran’s claim for a compensable rating for left inguinal hernia, status post herniorrhaphy, on an extraschedular basis.

 

R. FEINBERG

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	M. Zimmerman, Associate Counsel