Citation Nr: 21066629 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 08-04 315 DATE: November 1, 2021 ORDER Entitlement to a separate 10 percent disability rating for residuals, right inguinal hernia, is granted. Entitlement to a disability rating in excess of 10 percent for painful scar associated with residuals, right inguinal hernia, is denied. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right inguinal hernia is recurrent, painful, and limits movement and lifting. 2. The Veteran's painful scar associated with residuals, right inguinal hernia, does not result in deep and nonlinear scars with an area of at least 12 square inches but less than 72 square inches; does not result in three or four scars that are unstable or painful; and does not result in any disabling effects. 3. The Veteran's bilateral pes planus has manifested as accentuated pain on manipulation, but he has not exhibited marked pronation, extreme tenderness of the plantar surfaces of the feet or marked inward displacement and severe spasm of the tendo achillis on manipulation. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating for right inguinal hernia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7338. 2. The criteria for a disability rating in excess of 10 percent for the Veteran's right hernia scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.118, Diagnostic Codes 7801-05. 3. The criteria for a disability rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in in February 2012, February 2014, February 2016, March 2017, and May 2018. In November 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Residuals of right inguinal hernia The Veteran contends that he is entitled to a compensable rating for his inguinal hernia. While the Veteran has been granted a 10 percent disability rating for a painful scar associated with his residuals from the right inguinal hernia, the Veteran asserts that he should also be granted an increased disability rating for the hernia, which the Veteran believes is recurrent. The Veteran's inguinal hernia is rated under 38 C.F.R. § 4.71a, Diagnostic Code 7338, inguinal hernia. Under Diagnostic Code 7338, a 60 percent disability rating is warranted for a large postoperative inguinal hernia that is recurrent, not well supported under ordinary conditions and not readily reducible when considered inoperable, a 30 percent disability rating is warranted for a small postoperative recurrent inguinal hernia or a hernia that is unoperative and irremediable, not well supported by truss, or not readily reducible. A 30 percent disability rating is warranted for a small postoperative recurrent, or unoperated irremediable, not well supported by truss or not readily reducible. A 10 percent disability rating is warranted for postoperative hernia that is recurrent, readily reducible and well supported by truss or belt. A noncompensable rating is warranted if the hernia is not operated but remediable. A noncompensable evaluation is also warranted for a small hernia that is reducible or without true hernia protrusion. 38 C.F.R. § 4.114, Diagnostic Code 7338. The Veteran underwent a VA hernia examination in March 2012. The examiner noted that no right hernia was detected. A painful scar was noted. The examiner stated the hernia did not impact his ability to work. The Veteran attended a VA hernia examination in May 2018. The Veteran reported pain in the groin at the surgical site, especially when carrying or lifting. Upon examination no hernia was detected and there was no indication for support. The examiner stated the hernia impacted the Veteran's ability to work because the constant pain makes it difficult for him to lift or carry objects. The examiner noted that although uncommon, there is sometimes various neuralgia that follows hernia repair, which can be debilitating. This makes it very difficult for the Veteran to lift or carry objects. Bending over is also a problem. As the Veteran can likely only do manual labor, it would make it very difficult for him to get work. The Board finds that a 10 percent disability rating is warranted for the Veteran's service-connected right inguinal pain. The Veteran's hernia appears to be causing recurrent pain and difficulty as described by the May 2018 VA examiner. Although the May 2018 examiner noted that there was no indication for a supporting belt, the same examiner noted that the Veteran has been limited due to pain in his right inguinal hernia that has limited his movement and lifting. Limitation of movement and lifting would normally be helped with a supportive belt. Resolving all doubt in the favor of the Veteran, the Board finds that the Veteran's symptoms more closely approximate a 10 percent disability rating. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Hernia Scar The Board notes that the Veteran was granted a 10 percent disability rating for a painful scar secondary to his residuals from a right inguinal hernia by a January 2013 rating decision. Under Diagnostic Code 7801, a 10 percent disability rating is assigned for scars other than the head, face, or neck that are deep or that cause limited motion with an area exceeding 6 square inches (39 square centimeters). A 20 percent disability rating is assigned with an area exceeding 12 square inches (77 square centimeters). A 30 percent disability rating is assigned for scars with an area exceeding 72 square inches (465 square centimeters). A 40 percent disability rating is assigned for scars exceeding 144 square inches (929 square centimeters). Under Diagnostic Code 7802, a 10 percent disability rating is assigned for scars other than the head, face, or neck that are superficial with an area exceeding 144 square inches (929 square centimeters). Under Diagnostic Code 7804, a 10 percent disability rating is assigned for one or two scars that are unstable or painful. A 20 percent disability rating is assigned for three or four scars that are unstable or painful. A 30 percent disability rating is assigned for five or more scars that are unstable or painful. If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Under Diagnostic Code 7805, scars and other effects of scars not considered under Diagnostic Codes 7800-04 are evaluated under an appropriate Diagnostic Code. The Veteran's medical record do not document hernia scar findings consistent with a higher disability rating. The VA hernia examination in March 2012 noted a painful scar. The May 2018 examiner could not locate a right hernia scar, but noted the surgical site was painful. The evidence does not show that the Veteran's right hernia scar has an area of at least 12 square inches (77 square centimeters). The Veteran does not have three or four painful scars. The Veteran's right hernia scar is not unstable. The Veteran's right hernia scar does not result in any disabling effects. Therefore, a disability rating in excess of 10 percent is not warranted under any Diagnostic Code. As such, the criteria for a disability rating in excess of 10 percent for the Veteran's right hernia scar have not been met, and the Veteran's claim is denied. 3. Pes planus The Veteran seeks an increased disability rating for his service-connected bilateral pes planus. The Veteran reports pain in both feet when ambulating over a distance or standing for long periods of time, and he uses the assistance of a cane due to the pain, and the condition does not improve with orthotics. The Veteran's service-connected bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a 30 percent disability rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A maximum 50 percent disability rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran was afforded a March 2012 VA foot examination. The examiner diagnosed the Veteran with bilateral pes planus, plantar fasciitis, and metatarsalgia. The Veteran reported pain with walking and prolonged standing. The podiatrist has given him inserts that help. The examiner stated the Veteran's foot condition impacts his ability to work because he is unable to perform activities requiring prolonged walking or standing. The Veteran underwent a VA foot examination in May 2018. The Veteran reported burning pain when walking. He stated his feet hurt all the time. The Veteran denied flare-ups. The examiner found the Veteran with accentuated pain on use of both feet. No pain on manipulation. The examiner found indication of swelling of both feet but no evidence of characteristic calluses. The examiner noted the Veteran tried bilateral arch supports with no relief. The examiner found the Veteran with decreased longitudinal arch height of both feet on weight bearing. The examiner did not find extreme tenderness of plantar surfaces on either foot; marked deformity of either foot; marked pronation of either foot; evidence of weight-bearing line falling over or medial to the great toe; or lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The examiner did not find the Veteran to demonstrate "inward" bowing of the Achilles tendon or marked inward displacement and severe spasms of the Achilles tendon on manipulation of the feet. The examiner stated the Veteran cannot stand or walk for long periods of time. He stated the Veteran is only capable of manual labor, which causes him a problem finding work. The Board finds that the preponderance of the evidence is against a disability rating in excess of 30 percent for pes planus. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and functional loss after prolonged walking or standing. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by those statements would not result in symptoms more nearly approximating pronounced bilateral acquired flatfoot. Overall, the Veteran's bilateral pes planus is manifested by accentuated pain and swelling on use of the feet; decreased longitudinal arch height of both feet on weight-bearing; pain on movement, weight-bearing, and non-weight-bearing; swelling; disturbance of locomotion; and interference with standing. These findings more closely approximate the criteria for a 30 percent disability rating under Diagnostic Code 5276. The Board finds no probative lay or medical evidence during the relevant evidence periods demonstrating that the Veteran's service-connected bilateral pes planus has been manifested by marked pronation in either foot, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation of each foot, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. While a 30 percent disability rating is warranted for the Veteran's bilateral pes planus, the evidence is firmly against assigning a rating in excess of 30 percent. The evidence is not in equipoise. The claim of entitlement to a disability rating in excess of 30 percent disabling for service-connected bilateral pes planus is denied. REASONS FOR REMAND TDIU The Veteran has alleged that he is entitled to a total disability rating based on individual unemployability. He asserts he has been too disabled to work since 2010. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the obtaining and maintaining of substantially gainful employment. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran does not have one service-connected disability rated at 60 percent or more, nor does he have a combined disability rating of 70 percent or more. Therefore, the Veteran does not meet the schedular criteria for a TDIU. The relevant regulation provides that, if the required percentage requirements for TDIU are not met on a scheduler basis, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disorders, then the Director, Compensation and Pension Service (C&P), should consider whether TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16 (b). The Board may not award a TDIU on an extraschedular basis in the first instance. For extraschedular TDIU claims, a claimant's case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director, Compensation Service, where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The pertinent inquiry is whether there is "plausible" evidence of unemployability warranting consideration under 38 C.F.R. § 4.16 (b) by referral to the Director, Compensation Service. The record contains plausible evidence of unemployability due to his service-connected disabilities. The May 2018 VA foot and hernia examiners concurred that the Veteran's disabilities of the feet and hernia significantly impact any vocation requiring bending, prolonged standing and walking, lifting, or carrying. The record shows the Veteran has no vocational training, and he has a high school education. The Board finds that the above evidence constitutes at least plausible evidence of unemployability due solely to the Veteran's service-connected disabilities. See Bowling, 15 Vet. App. at 10. The evidence tends to suggest that the Veteran's service-connected disabilities affecting his physical functioning render him unable to obtain and maintain substantially gainful employment. Therefore, the Board finds that referral to the Director, Compensation Service for consideration of entitlement to an extraschedular TDIU rating is warranted. See Bowling, 15 Vet. App. at 10; 38 C.F.R. § 4.16 (b). A remand is required for the RO to refer the claim for an extraschedular TDIU rating to the Director, Compensation Service. The Veteran should understand that the Board has not determined that he is unemployable, only that the record contains plausible evidence of unemployability and, therefore, that referral to the Director, Compensation Service, is warranted for consideration of the merits of the issue in the first instance. (Continued on the next page) The matters are REMANDED for the following action: 1. Refer the Veteran's claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.