Citation Nr: 21068124 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 09-35 528 DATE: November 9, 2021 REMANDED The issue of entitlement to an evaluation in excess of 10 percent disabling for service-connected right indirect inguinal hernia, postoperative, for the period prior to June 30, 2017, and in excess of 30 percent disabling for the period, thereafter, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The issue of entitlement to service connection for a residual penile scar, claimed as a penile condition, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1977 to October 1981. In June 2017, the Veteran testified under oath at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2020, the Board remanded the issues on appeal for additional development. For the reasons outlined below, the Board finds that remand is again needed. 1. Entitlement to an increased evaluation for service-connected right indirect inguinal hernia. 2. Entitlement to a TDIU. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, the Board finds that a new VA examination is needed to evaluate the current severity of the service-connected right indirect inguinal hernia. The Veteran's last VA examination for this disability was in September 2018. Since that time, and following the April 2020 Board remand, the Veteran submitted a statement that "Hernia has returned." See VA Form 21-4138, November 2020. To the extent that this statement can be considered an indication of worsening, the Board remands to afford the Veteran a new VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, the Board seeks clarification of the following. The September 2018 VA examination report notes that there is an indication for a supporting belt, but then does not indicate whether the hernia can be well supported by truss or belt. Rather, the report states that no truss or belt is tried or used. The Board seeks clarification upon remand. The issue of entitlement to a TDIU is intertwined with the increased evaluation issue and is also remanded. 3. Entitlement to service connection for a residual penile scar, claimed as a penile condition. Regarding the penile scar, the Board acknowledges the April 2021 VA opinion, but finds it to be inadequate for the following reason. First, the Board notes a service treatment record that documents laceration to the head of the penis. See STR, October 1980. Further, an October 2015 private treatment record notes a "small scar on foreskin extremely tender to touch." However, at the September 2018 VA examination, a "scar-like/pigmented lesion" was noted on the shaft of the penis. Further, in subsequent correspondence, the Veteran reiterated that "the scar on my penis is on the left side (middle area)." See Correspondence, January 2019. In the April 2020 remand, the Board requested an addendum opinion regarding the claimed residual penile scar. The examiner was asked to address whether the scar identified at the September 2018 VA examination is at least as likely as not caused by the events described by the Veteran in service. Following the remand, it appears that in addition to obtaining an opinion, the Veteran was reexamined. An April 2021 VA examination report did not identify a penile scar on either the head or the shaft. Further, the April 2021 VA opinion states: "I was not able to find a measurable scar on exam. I can not [sic] explain statement form [sic] 2015 exam without mere speculation." The Board finds this opinion to be inadequate for the following reasons. First, the Board seeks clarification of the term "measurable scar" (emphasis added). In addition, the April 2020 remand asked the examiner to address the September 2018 VA examination, but the April 2021 opinion references a "2015 exam." Further, the opinion does not address the documented event in service, nor does it address the private treatment record, and the VA examination, which noted a scar/ scar-like/pigmented lesion. Accordingly, the Board finds that a new examination and opinion are needed. Further, the Board asks that the following be addressed upon remand. The Board acknowledges that documents were associated with the claim file in May 2020 from the Social Security Administration (SSA). These documents identify the Veteran by the English version of his name and indicate that no primary or secondary diagnosis was established. They are dated 2012. In the April 2020 remand, the Board noted that a CAPRI record from October 2017 indicates that the Veteran is in receipt of benefits from the SSA. Further, the Board noted that his records may be under a different name. See CAPRI, July 2019 (noting that the Veteran reports that his Social Security card uses his English name, not his Spanish name as listed on his birth certificate). Given that the records obtained reflect the date 2012, which is prior to the October 2017 indication that the Veteran receives SSA benefits, and given that a different version of the Veteran's name may be used, the Board asks that an additional attempt be made to obtain records from the SSA. In addition, in the April 2020 remand, the Board noted that the Veteran indicated that photographs were taken at a VA examination, and he requested that these be reviewed. See Correspondence, January 2019. The September 2018 VA examination notes that photographs were taken. The Board asked that photographs be associated with the claim file upon remand. The Board acknowledges attempts made to obtain photographs. See VA 10-7131, June 2020, and March 2021. The Board asks that the Veteran be informed of the status of these attempts upon remand. Finally, the Board seeks clarification regarding the status of the Veteran's service treatment records. In the April 2020 remand, the Board noted that copies of the Veteran's service treatment records are illegible and asked that legible copies be uploaded to the electronic record, if available. The Board acknowledges a January 2021 rescan request, but does not see that it was subsequently resolved. The Board seeks clarification upon remand. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. Further, the Board asks that the following be addressed upon remand. The Board acknowledges that documents were associated with the claim file in May 2020 from the SSA. These documents identify the Veteran by the English version of his name and indicate that no primary or secondary diagnosis was established. They are dated 2012. In the April 2020 remand, the Board noted that a CAPRI record from October 2017 indicates that the Veteran is in receipt of benefits from the SSA. Further, the Board noted that his records may be under a different name. See CAPRI, July 2019 (noting that the Veteran reports that his Social Security card uses his English name, not his Spanish name as listed on his birth certificate). Given that the records obtained reflect the date 2012, which is prior to the October 2017 indication that the Veteran receives SSA benefits, and given that a different version of the Veteran's name may be used, the Board asks that an additional attempt be made to obtain records from the SSA. In addition, in the April 2020 remand, the Board noted that the Veteran indicated that photographs were taken at a VA examination, and he requested that these be reviewed. See Correspondence, January 2019. The September 2018 VA examination notes that photographs were taken. The Board asked that photographs be associated with the claim file upon remand. The Board acknowledges attempts made to obtain photographs. See VA 10-7131, June 2020, and March 2021. The Board asks that the Veteran be informed of the status of these attempts upon remand. Finally, the Board seeks clarification regarding the status of the Veteran's service treatment records. In the April 2020 remand, the Board noted that copies of the Veteran's service treatment records are illegible and asked that legible copies be uploaded to the electronic record, if available. The Board acknowledges a January 2021 rescan request, but does not see that it was subsequently resolved. The Board seeks clarification upon remand. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for the following VA examinations: (a) A VA examination in order to address the current severity of the service-connected right indirect inguinal hernia, postoperative. The examiner is asked to address the impact of this service-connected disability on the Veteran's employability. In addition, the Board seeks clarification of the following. The September 2018 VA examination report notes that there is an indication for a supporting belt, but then does not indicate whether the hernia can be well supported by truss or belt. Rather, the report states that no truss or belt is tried or used. The Board seeks clarification upon remand. (b) A VA examination to clarify the diagnosis of his claimed residual penile scar, claimed as a penile condition, and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was incurred in, or is otherwise related to, the Veteran's active duty service. The examiner is asked to specifically address: (1) Service treatment record that shows laceration to the head of the penis. See STR, October 1980. (2) An October 2015 private treatment record that notes a "small scar on foreskin extremely tender to touch." (3) The September 2018 VA examination that notes a "scar-like/pigmented lesion" on the shaft of the penis. (4) Correspondence in which the Veteran reiterated that "the scar on my penis is on the left side (middle area)." See Correspondence, January 2019. In addition, the Board seeks clarification of the term "measurable scar" (emphasis added) as used in the April 2021 VA opinion. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issues are 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 K. Foster, 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.