Citation Nr: 18122767 Decision Date: 07/31/18 Archive Date: 07/31/18 DOCKET NO. 15-08 898 DATE: July 31, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent for residuals of post-operative left inguinal hernia is remanded. Entitlement to an initial disability rating in excess of 10 percent for painful scars, residuals of post-operative left inguinal hernia is remanded. Entitlement to an increased disability rating for bilateral testalgia with left varicocele, to include whether the reduction of the evaluation from 20 percent to 10 percent was proper, is remanded. Entitlement to a compensable disability rating for residual linear scars from post-operative left inguinal hernia and bilateral testalgia with left varicocele is remanded. Entitlement to a compensable disability rating for sterility is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND In the November 2014 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 20 percent disability rating for bilateral testalgia with left varicocele, effective June 6, 2014. In a January 2015 rating decision, the AOJ reduced the rating for bilateral testalgia and left varicocele back to 10 percent based on a finding of clear and unmistakable error in the November 2014 rating decision. The January 2015 rating decision also established service connection for painful scars, residuals of post-operative left inguinal hernia rated as 10 percent disabling, effective January 6, 2010. The Board finds that these issues are part and parcel of the Veteran’s claims for increased disability ratings for his left inguinal hernia and for bilateral testalgia with left varicocele, and are also before the Board. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran’s representative has indicated that he cannot work due in part to his residuals of post-operative left inguinal hernia. See May 2013 substantive appeal. Accordingly, the Board has characterized the issues on appeal to include a claim for entitlement to TDIU. In the February 2010 notice of disagreement, the Veteran contended that multiple issues from a 2006 appeal were still pending. These issues were entitlement to service connection for right inguinal hernia, left inguinal hernia, tinnitus, and hearing loss; and entitlement to separate ratings for significant scarring, loss of use of the vas deferens, loss of use of the epididymis, and loss of use of the penis. See December 2006 amended VA Form 9 and Veteran statement. However, these issues were adjudicated by the Board in an April 2009 decision, and entitlement to service connection for residuals of a left inguinal hernia was established in the November 2009 rating decision. 1. Entitlement to an initial disability rating in excess of 10 percent for residuals of post-operative left inguinal hernia is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for painful scars, residuals of post-operative left inguinal hernia is remanded. During the appeal period, the Veteran contended that there are outstanding relevant treatment records from Great Lakes Naval Hospital. See, e.g., February 2006 Veteran statement. A July 2006 search did not locate any records for the Veteran from that facility. See VA Form 21-3101. However, in a March 2006 statement, the Veteran indicated he had received 47 pages of copies from his Naval Hospital medical file. On remand, the AOJ should request the Veteran provide copies of these records to VA. The Veteran contends his multiple left inguinal hernia repairs and the operative scars have resulted in numerous residuals, to include incisional granulation, swelling/tenderness, impaired nerves, muscle impairment to include limitations in movement, and gastrointestinal dysfunction to include internal pain and bleeding from the rectum. See, e.g., May 2015 attorney brief; March 2010 Veteran statement; May 2008 Veteran statement (requesting treatment by outside specialists); December 2006 Veteran statement; December 2006 Veteran statement with amended VA Form 9; February 2006 Veteran statement; March 2005 Veteran statement to Dr. C.N.B.; November 2004 Veteran statement. The Veteran contends some of these issues, including the internal pain and gastrointestinal bleeding, may be related to internal scar tissue and/or adhesion. See December 2006 Veteran statement; February 2006 Veteran statement; see also October 2010 clinician’s chronic care form (left lower quadrant pain may be adhesion given repeated surgeries). In a February 2007 independent medical evaluation, Dr. C.N.B. opined that the Veteran’s pain, incisional granulation formation, staple migration, and bowel blockages/diarrhea and/or bleeding should all be rated as they are all likely secondary complications of his 1978 surgery. Dr. C.N.B. indicated the Veteran’s 1978 surgery was an inguinal hernia repair, however the evidence of record indicates that surgery was actually for left varicocele. See, e.g., May 1979 VA genitourinary examination report. An April 2013 VA hernias examiner noted the Veteran’s complaints of chronic pain in the lower abdomen, painful operative scars, and opined the Veteran has some sensory nerve deficit in the inguinal region/proximal medial thigh from his hernia surgeries. See also September 2014 VA scars examination report. However, the VA examiner did not address the Veteran’s reports regarding the other claimed residuals of his left inguinal hernia repairs. On remand, the AOJ should afford the Veteran a new examination to determine the current severity and manifestations of his service-connected residuals of post-operative left inguinal hernia, to include addressing all of the Veteran’s claimed residuals. Further, the Veteran’s representative contends the Veteran’s complete residuals of his post-operative left inguinal hernia warrant an extraschedular disability rating as they are not contemplated by the rating criteria, and result in marked interference with employment. See May 2015 attorney brief; May 2013 substantive appeal. On remand, the AOJ should address whether referral for consideration of an extraschedular disability rating is warranted. See 38 C.F.R. § 3.321(b) (2017). 3. Entitlement to an increased disability rating for bilateral testalgia with left varicocele, to include whether the reduction of the evaluation from 20 percent to 10 percent was proper, is remanded. 4. Entitlement to a compensable disability rating for residual linear scars from post-operative left inguinal hernia and bilateral testalgia with left varicocele is remanded. 5. Entitlement to a compensable disability rating for sterility is remanded. The Board finds a decision on the remanded claims for residuals of the post-operative left inguinal hernia and painful scars could significantly impact a decision on the claims for increased ratings for bilateral testalgia with left varicocele, residual linear scars, and sterility. First, the disabilities all affect similar areas of the Veteran’s body. Further, the disability rating for the Veteran’s residual linear scars includes consideration of any disabling effects of the Veteran’s left inguinal hernia scars. See January 2015 rating decision. The February 2007 opinion from Dr. C.N.B. is unclear as to whether some of the Veteran’s claimed symptoms and residuals may be related to his left inguinal hernia surgeries or his 1978 surgery for left varicocele. Finally, the Veteran has contended that his erectile dysfunction and sterility may be related to a loss of sensation due to nerve damage from his surgeries. See December 2006 Veteran statement with amended VA Form 9; March 2005 Veteran statement to Dr. C.N.B. Accordingly, the Board finds the issues are inextricably intertwined, and a remand of the claims for increased disability ratings for bilateral testalgia with left varicocele, residual linear scars, and sterility is required. 6. Entitlement to TDIU is remanded. Finally, because a decision on the remanded increased rating issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with notice regarding his TDIU claim. Undertake any necessary development to obtain any additional evidence pertinent to the Veteran’s TDIU claim. All records and responses received should be associated with the evidentiary record. 2. Ask the Veteran to provide copies of the medical records he received from Great Lakes Naval Hospital in 2006. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of post-operative left inguinal hernia, to include scars. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should address the Veteran’s contentions that the following are residuals of, or otherwise related to, his left inguinal hernia repairs and/or scarring: incisional granulation; swelling/tenderness; impaired nerves; internal scarring and/or adhesion; muscle impairment to include limitations in movement; and gastrointestinal dysfunction to include internal pain and bleeding from the rectum after bowel movements. The examiner should address the February 2007 independent medical evaluation opinion from Dr. C.N.B., the October 2010 clinician’s chronic care form stating the Veteran’s left lower quadrant pain may be adhesion, and the April 2013 VA examination reports, including the findings of a sensory nerve deficit in the inguinal region/proximate thigh. To the extent possible, the examiner should identify any functional impairments due to the residuals post-operative left inguinal hernia and residual scars, and discuss the effect of the Veteran’s residuals post-operative left inguinal hernia and residual scars on any occupational functioning and activities of daily living. 4. The AOJ should address whether referral of the Veteran’s claim for an increased rating for residuals of post-operative left inguinal hernia to VA’s Director of Compensation Service for extraschedular consideration is warranted. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to increased disability ratings for bilateral testalgia with left varicocele, residual linear scars, and sterility, and entitlement to TDIU. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel