Citation Nr: 21068855 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 17-36 275A DATE: November 15, 2021 REMANDED Entitlement to a compensable rating for bilateral inguinal hernias, including post-operative residuals, from November 11, 2013 to May 15, 2017, and a rating in excess of 20 percent from May 1, 2017 (excluding temporary total rating assignments), is remanded. Entitlement to a rating in excess of 10 percent for painful right and left lower inguinal hernia surgical scars, individually prior to October 1, 2018, and collectively from October 1, 2018, is remanded. Entitlement to compensable disability ratings for right and left scars of the suprapubic region, individually prior to October 1, 2018, and collectively from October 1, 2018, is remanded. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in bad dreams is remanded. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in bilateral foot pain is remanded. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in back pain is remanded. Whether a Notice of Disagreement (VA Form 21-0958) received December 13, 2018 addressing entitlement to service connection for bad dreams, bilateral foot pain and back pain, is timely as to a November 2017 rating decision is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1983 to May 1986. This appeal comes before the Board of Veterans' Appeals (Board) from November 2018 and November 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Atlanta, Georgia. The Board issued an April 2020 decision remanding increased ratings for bilateral inguinal hernias, left and right inguinal hernia surgical scars, left and right suprapubic scars, and entitlement to a TDIU. Additional claims for service connection for bad dreams, bilateral foot pain and bilateral back pain were remanded for issuance of a statement of case (SOC). The RO issued a September 2020 supplemental statement of case (SSOC) denying increased ratings and entitlement to TDIU. The Veteran filed an October 2020 Request for Higher Level Review on all of the issues listed in the September 2020 SSOC with the exception of the issue of TDIU, however, he did not elect the SOC/SSOC opt in and therefore those issues were not withdrawn from the legacy appeals process and are currently before the Board. 1. Entitlement to a compensable rating for bilateral inguinal hernias, including post-operative residuals, from November 11, 2013 to May 15, 2017, and a rating in excess of 20 percent from May 1, 2017 (excluding temporary total rating assignments), is remanded. 2. Entitlement to a rating in excess of 10 percent for painful right and left lower inguinal hernia surgical scars, individually prior to October 1, 2018, and collectively from October 1, 2018, is remanded. 3. Entitlement to compensable disability ratings for right and left scars of the suprapubic region, individually prior to October 1, 2018, and collectively from October 1, 2018, is remanded. In an April 2020 decision, the Board remanded the above issues for a new VA examination to determine the severity of Veteran's service-connected bilateral post-operative inguinal hernias and associated scars. The examiner was directed to specifically discuss the extent to which pain caused functional impairment in bending, twisting, and lifting, or any other impairments, and to distinguish pain symptoms and functional loss caused by the inguinal hernias and surgeries themselves, from pain symptoms and functional loss caused by the scars alone. Id. During a September 2020 VA examination for hernias and scars, the examiner noted the Veteran had a scar on his left lower extremity and a scar on his right lower extremity due to inguinal hernia surgery. He stated the Veteran did not have any current hernias or symptoms of the condition. The examiner opined the Veteran did not have any functional impairment due to hernias or his surgical scars. Id. The Board finds the examination is inadequate. First, the examiner indicated the Veteran only had two scars due to his hernia surgery, however the medical evidence of record is consistent that the Veteran had a total of four scars due to his hernia surgeries. Id. Second, the examiner failed consider the Veteran's lay statements regarding his limitations due to pain or the August 2019 VA examiner's opinion that the Veteran's condition had worsened, that he had four painful scars, could not lift more than 25lbs or do any pushing, pulling, or tugging. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Lastly, the examiner failed to provide adequate rationale in support of their conclusion that the Veteran did not have any functional limitations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical report cannot merely draw conclusions from data; it should include "a reasoned medical explanation connecting the two"), see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Therefore, the Board finds there has not been substantial compliance with the April 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). During a December 2020 VA examination for hernias, the Veteran reported his pain had been increasing since 2018 and that he was currently using a truss for support of his condition. The examiner noted the presence of small bilateral hernias that were readily reducible and well supported by the truss. Id. The examiner opined the Veteran's condition limited his mobility, that he could not bend, lift, or walk more than half a mile. Id. The December 2020 VA examiner was not provided with the April 2020 remand directives and did not provided the requested opinion; therefore, the Board finds the opinion is inadequate. 4. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in bad dreams is remanded. 5. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in bilateral foot pain is remanded. 6. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in back pain is remanded. 7. Whether a Notice of Disagreement (VA Form 21-0958) received December 13, 2018 addressing entitlement to service connection for bad dreams, bilateral foot pain and back pain, is timely as to a November 2017 rating decision is remanded. In an April 2020 decision, the Board remanded the above issues for issuance of a statement of case (SOC) in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). To date, a SOC has not been issued. Therefore, the Board finds there has not been substantial compliance with the April 2020 remand directives and directs the RO to issue a SOC for the above issues. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). 8. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In an April 2020 decision, the Board remanded the issue of entitlement to TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), in accordance with the Veteran's increased rating claims finding TDIU was inextricably intertwined with the claims on remand. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In his November 2017 application for increased compensation based on unemployability, the Veteran reported that he was last employed in October 2017 and stopped due to his service-connected disabilities. However, during June 2019, January 2020 and April 2020 medical appointments, the Veteran reported he was still working long hours each day at his maintenance job and had been doing this for multiple months. See July 2019 and December 2020 VA Medical Treatment Records. The Board finds that the current evidence of record conflicts as to the Veteran's employment since 2019 and therefore remand of the issue of entitlement to TDIU is required for clarification of the Veteran's employment status. The matters are REMANDED for the following action: 1. Ask the Veteran to complete an updated TDIU claim form (VA Form 21-8940). 2. Schedule the Veteran for new VA examinations to determine the current severity of his bilateral postoperative inguinal hernias, and his associated surgical scars. The claims file must be made available for review, and the examination report should reflect that such review occurred. The examiner should specifically discuss 1) the extent, if any, that pain causes functional impairment in bending, twisting, and lifting, or any other impairments, and 2) distinguish pain symptoms and functional loss caused by the inguinal hernias and surgeries themselves, from pain symptoms and functional loss caused by the scars alone. If this is not possible, the examiner should discuss why they are unable to distinguish the symptoms. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. 3. Issue a Statement of the Case addressing the following three issues, adjudicated in a November 2018 rating decision, and disagreed with by the Veteran in a timely December 13, 2018 Notice of Disagreement: a. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in bad dreams. b. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in bilateral foot pain. c. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a disability manifesting in back pain. The Veteran should be notified of his appeal rights, for any issues not granted in full. 4. Send the Veteran a Statement of the Case addressing the timeliness of his December 13, 2018 Notice of Disagreement, as to a November 2017 rating decision. The Veteran should be notified of his appeal rights if the issue is not granted. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.