Citation Nr: 21072346 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-21 663 DATE: December 2, 2021 ORDER 1. Entitlement to a 40 percent rating, but no higher, for right lower extremity palsy and paresthesia is granted. 2. Entitlement to a rating in excess of 50 percent prior to July 11, 2014, for insomnia, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) with insomnia is denied. 3. Entitlement to an initial compensable rating for right inguinal hernia is denied. 4. Entitlement to an initial compensable rating for hernia scar is denied. REMANDED 5. Entitlement to compensation for total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, the evidence shows moderately severe, incomplete paralysis of the sciatic nerve but not severe incomplete or complete paralysis. 2. Prior to July 11, 2014, the preponderance of the evidence is against finding that the insomnia manifested with occupational and social impairment with deficiencies in most areas. 3. From July 11, 2014, the preponderance of the evidence is against finding that PTSD with insomnia manifests with total occupational and social impairment. 4. The preponderance of the evidence is against finding a current or recurrent hernia, hernia that required support from a truss or belt, or hernia that is irremediable. 5. The preponderance of the evidence is against finding the hernia scar causes functional impairment or is painful, unstable, or at least 929 square centimeters. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for right lower extremity palsy and paresthesia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a rating in excess 50 percent for insomnia prior to July 11, 2014, and in excess of 70 percent thereafter, for PTSD with insomnia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for an initial compensable rating for right inguinal hernia have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.114, DC 7338. 4. The criteria for an initial compensable rating for hernia scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 2011 to July 2012. The Board remanded these matters in September 2019 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran filed a VA Form 10182 to appeal the 70 percent rating for PTSD with insomnia set in the September 2020 rating decision under the Appeals Modernization Act (AMA) system. However, as the issue of the proper rating for insomnia is on appeal in the legacy system and the September 2020 supplemental statement of the case (SSOC) classified the issue on appeal to include both PTSD and insomnia, the September 2020 rating decision is not considered an initial decision that can be appealed under the AMA. See 38 C.F.R. § 3.2400. The Veteran did not opt-in to the AMA from the SSOC. Therefore, the issue remains in the Board's jurisdiction under the legacy appeals system. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Reasonable doubt as to the degree of the disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Court has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 1. A rating in excess of 20 percent for right lower extremity palsy and paresthesia Disabilities affecting the sciatic nerve are assigned a 10 percent rating for mild, 20 percent for moderate, 40 percent for moderately severe, and 60 percent for severe incomplete paralysis, which is evidenced by muscular atrophy. Complete paralysis, defined as the foot dangles and drips, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost, warrants an 80 percent rating. 38 C.F.R. § 4.124a, DC 8520. Resolving doubt in the Veteran's favor, the Board finds the criteria for a 40 percent rating, but no higher, have been met for the right lower extremity. See 38 C.F.R. § 4.124a, DC 8520. The Veteran was provided a VA examination in August 2013. The Veteran reported right leg weakness, numbness, and pain, noting that the leg would give way sometimes. The examiner observed that he was able to drive himself to the appointment, but he reported he had to sometimes use his left leg when driving. The examiner recorded full strength at the knee and ankle plantar flexion but four out of five at ankle dorsiflexion, no muscle atrophy, normal reflexes, and decreased sensation at the lower leg/ankle and normal sensation at upper leg and foot. The Veteran had severe constant pain, moderate paresthesias/dysesthesias, and moderate numbness. The examiner identified moderate, incomplete paralysis of the ilioinguinal and sciatic nerves and constant use of a brace and cane. In a July 2014 private evaluation, the evaluator noted the Veteran experienced at least 75 percent motor loss in flexion and extension of the right leg and marked pain and paresthesias in both sciatic and femoral distributions. The evaluator further noted the Veteran could not walk beyond about 35 feet, and required a cane or walker, though he spent much of his time in a manual wheelchair. The provider noted the Veteran's ability to walk was markedly impaired. The May 2015 VA examiner recorded severe constant pain, moderate intermittent pain, no paresthesias/dysesthesias, no numbness, two out of five strength at knee extension, one out of five strength at plantar flexion, three out of five strength at ankle dorsiflexion. The examiner documented no muscle atrophy, normal reflexes, and normal sensation. The examiner found moderate incomplete paralysis of the sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves. The Veteran reported that he regularly used a cane, and the examiner documented that he had an antalgic gait causing impairment of prolonged standing, walking, and climbing. Another VA examination was provided in February 2020. The VA examiner recorded severe constant pain, moderate intermittent pain, mild paresthesias/dysesthesias, mild numbness, strength as three out of five at knee extension and ankle dorsiflexion but one out of five at ankle plantar flexion, no muscle atrophy, normal reflexes, and normal sensation at upper leg but decreased sensation at the lower leg, ankle, and foot. The examiner found moderate, incomplete paralysis of the sciatic, external popliteal, musculocutaneous, anterior tibial, and internal popliteal nerves. The Veteran reported that he regularly used a cane and wheelchair due to decreased mobility and inability to walk or stand for more than five minutes at a time. The Board finds a 40 percent rating for moderately severe paralysis of the sciatic nerve is most appropriate. The evidence shows decreased strength in the right leg and notable impact on ambulation due to the right leg with frequent use of a wheelchair. The Board finds these symptoms and impairment most closely align with a moderately severe disability picture. However, there is no evidence of muscle atrophy, abnormal reflexes, or absent sensation to evidence a disability picture similar to severe incomplete or complete paralysis of the sciatic nerve. Additionally, the Board finds a rating under the diagnostic code for the sciatic nerve is the best diagnostic code for rating based on the Veteran's disability picture. All examiners and evaluators identified the sciatic nerve as being involved with the Veteran's paralysis, whereas identification of involvement of the other nerves is not consistent between evaluators. Moreover, the Diagnostic Code for the sciatic nerve provides for the highest available ratings. The maximum rating for incomplete paralysis of the external and internal popliteal and anterior crural (femoral) nerves is 30 percent, the maximum rating for incomplete paralysis of the musculocutaneous, anterior tibial, and posterior tibial nerves is 20 percent, and the maximum rating for the ilioinguinal nerve is 10 percent. 38 C.F.R. § 4.124a, DC 8521-8530. Although the evidence shows more than one nerve is involved with the Veteran's paralysis, the nature of the rating schedule for the peripheral nerves is such that all of the Veteran's symptoms and impairment can be considered when determining the overall severity, and such has been done in finding that the Veteran experiences moderately severe impairment. Assigning additional separate ratings under other diagnostic codes would be duplicative and constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Lastly, the Board notes the Veteran asserted that the August 2013 VA examination conducted by a nurse practitioner was inadequate because the nurse practitioner was not qualified. The Board sees no reason to find a medical professional with at least six years of specialized education unqualified to observe and measure the Veteran's disability presentation. In analyzing the Veteran's disability picture, the Board has considered the evidence in its entirety, including from both the August 2013 and February 2020 VA examinations, lay reports of symptoms and impairment, and the private evaluation submitted by the Veteran. The Board has resolved doubt in the Veteran's favor by awarding the 40 percent rating for moderately severe, incomplete paralysis. In assessing the totality of the evidence, the Board finds the weight of the evidence is against assigning a rating in excess of 40 percent for right lower extremity palsy and paresthesia. 2. A rating in excess 50 percent prior to July 11, 2014 for insomnia and in excess of 70 percent thereafter for PTSD with insomnia Prior to July 11, 2014, the Veteran was only service connected for insomnia. The Veteran was granted service connection for PTSD beginning July 11, 2014, and the analysis from that date considers PTSD and insomnia symptoms. The record shows the Agency of Original Jurisdiction considered all of the Veteran's mental health symptoms in the prior decisions, and the rating criteria are the same for insomnia and PTSD. Therefore, the issue is ripe for Board review. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Board notes that the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM)-5 no longer utilizes GAF scores. DSM-5 is applicable for cases certified to the Board on or after August 4, 2014. Under the General Rating Formula, the criteria for a 30 percent rating are: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The criteria for 50 percent rating are as follows: Occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for 70 percent rating are as follows: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The criteria for 100 percent rating are as follows: Total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, own name. 38 C.F.R. § 4.130, DC 9411. Based on the evidence of record, the Board finds the criteria for ratings in excess of 50 percent for insomnia prior to July 11, 2014, and in excess of 70 percent thereafter for PTSD with insomnia have not been met. 38 C.F.R. § 4.130, DC 9411. Prior to July 11, 2014, the preponderance of the evidence of record supports a finding that mental health symptoms caused occupational and social impairment with reduced reliability and productivity but not deficiencies in most areas. The Veteran was provided a VA examination in August 2013. The examiner diagnosed the Veteran with unspecified insomnia. The Veteran reported that he was a full-time student at a local college and lived with his girlfriend. The Veteran endorsed experiencing a depressed mood, chronic sleep impairment, poor appetite, hopelessness, unhappiness, feeling blue and feeling useless, and mild memory loss. He denied having any other symptoms attributable to his insomnia. MMPI-2 testing was valid, which suggested symptoms of harbored intense feelings of inferiority and insecurity, lack of self-confidence and self-esteem, feelings of guilt about perceived failures, and suggested long standing patterns of psychological maladjustments. A November 2013 VA treatment record lists symptoms of anxiety, poor sleep with about two to three hours per night, memory problems, hypervigilance, and feeling always on edge. The Veteran denied panic attacks, suicidal or homicidal ideation, and hallucinations. He reported attending school, living alone, and having few friends locally. The treating provider found him fully orientated and casually dressed with good hygiene, pleasant and cooperative demeanor, normal speech, restricted affect, normal thought, fair insight, fair judgment, and fair impulse control. During this period, the preponderance of the evidence when considering the total disability picture does not show symptoms that caused deficiencies in most areas. Initially, in the August 2013 VA examination report, when asked which of the following best summarized the Veteran's level of occupational and social impairment, the psychologist checked occupational and social impairment with reduced reliability and productivity, which is the level of severity described under the 50 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the service-connected insomnia, the examiner's conclusion that the insomnia was summarized best by the criteria described under the 50 percent rating is evidence against a finding that the insomnia caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood to warrant a 70 percent rating or higher. Furthermore, the Veteran reported having a romantic relationship and attending college full time. The Board finds this to be highly probative evidence that the Veteran was able to maintain relationships and was not significantly impaired educationally or occupationally as he was able to continue his education throughout this period on appeal. Symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss and resulting disturbances of motivation and mood and some difficulty in establishing and maintaining effective relationships are considered by the 30 and 50 percent rating criteria, and the preponderance of the evidence does not show symptoms resulting in impaired thought, speech, impulse control, or hygiene, nor did the Veteran exhibit symptoms of suicidal ideation, obsessional rituals, near continuous panic or depression, or spatial disorientation, which are examples of the more severe symptoms contemplated by the 70 percent rating criteria. Accordingly, the evidence does not support a rating in excess of 50 percent prior to July 11, 2014. In July 2014 the private provider diagnosed the Veteran with PTSD. The provider listed PTSD symptoms of severe anxiety, depression, anger, isolation, frustration, and memory loss. In assessing the Veteran's insomnia, the private provider documented the Veteran was only able to sleep for two to four hours at a time and suffered from chronic fatigue. The Veteran had a private psychological evaluation in August 2014. During the evaluation, the Veteran reported being close only to his brother, attending college from 2012 to 2014 and stopping due to cognitive and emotional difficulties, and not having any long-term dating relationships. The evaluator recorded symptoms of social isolation, difficulty with concentration and memory, feelings of detachment or estrangement from others, restricted affect, sleep problems, irritability and angry outbursts, concentration problems, hypervigilance, exaggerated startle response, fatigue, and loss of energy. The evaluator found the Veteran to be pleasant with below normal impulse control, normal speech, normal thought, blunted but appropriate affect, full orientation, below normal attention and concentration, below normal judgment and insight, no suicidal or homicidal ideation, no perceptual abnormalities, and work-related functional impairments. During the May 2015 VA examination, the Veteran reported living with his father but being in the process of moving in with his girlfriend of eight years, having few friends, not wanting to deal with people, only getting one to two hours of sleep per night, constantly being on guard and alert, feeling drained all the time, and having mild memory loss, paranoia, and suspiciousness. The examiner documented symptoms including anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner also documented that the Veteran casually dressed and well groomed, maintained appropriate eye contact and rapport, had an anxious and euthymic mood, had some short-term memory impairment, had some difficulties with concentration and attention, his thoughts were logical, he exhibited no signs of agitation or anxiety, he denied suicidal or homicidal ideations, he had normal speech, had no delusions or hallucinations, and had adequate judgment and insight. A VA treating provider in April 2018 recorded symptoms of moderate depression, severe anxiety, sleep problems, and feelings of numbness, but documented no suicidal ideations. The Veteran reported having a supportive girlfriend, not going out anymore, and doing well at work as a sales and marketing manager. At a February 2020 VA examination, assessing the nature of the diagnosed insomnia, the Veteran reported limited sleep, daytime fatigue, depressed mood, diminished interest and pleasure in activities, reduced motivation, loss of self-esteem, isolation, hopelessness, pessimism, having a good relationship with his long-term girlfriend and her son with whom he lives, and working as a marketing and sales manager. The Veteran noted he was often not able to work the full 40-hour week because of physical limitations. The examiner recorded symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships and found the Veteran appeared independent, was casually but normally dressed, alert and oriented, had normal speech, normal reasoning and problem-solving skills, flat mood and affect, and no suicidal ideas, impulses, or intent. At a July 2020 VA examination, specifically assessing PTSD, the Veteran reported that he had a good relationship with his parents and his siblings and he was still living with his long-time girlfriend and her son. He reported that he was still working as a manager at the appliance business, again noting that he was not quite working full time. However, he reported he had worked at the same job approximately 30 hours a week for the last four years. The Veteran reported recurrent involuntary and intrusive distressing memories and dreams of the traumatic event, intense or prolonged psychological distress and marked physiological reactions to internal or external cues. Avoidance behaviors, persistent and distorted cognitions about the cause or consequence of the traumatic events, peristent negative emotional state, markedly diminished interest in significant activities, irritable behavior and angry outbursts, problems with concentration, sleep disturbances, depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, difficulty establishing and maintaining effective relationships, and difficulty adapting to stressful circumstances. The examiner documented that the Veteran was fully alert and oriented, gave appropriate eye contact, and his speech and motor functions were normal. His thought processes were documented as linear, logical, and goal oriented with no hallucinations or delusions. The judgment and insight were fair, mood was anxious, and the affect was documented to be flat. The Veteran denied active suicidal or homicidal ideation or intent, though he did endorse some passive suicidal ideation. For the period from July 11, 2014 forward, the evidence does not show total occupational and social impairment. The 70 percent rating assigned is indicative of significant symptoms and impairment causing deficiencies in most areas. However, the Veteran functioned independently, behaved appropriately with evaluators, maintained good relationships with his long-term girlfriend and helped care for and parent her son. He reported working successfully as a sales and marketing manager. The Veteran did not have impaired thought, speech, or orientation or grossly inappropriate behavior. Thus, the Board finds the Veteran does not meet the high bar of being totally occupationally and socially impaired. Furthermore, on the July 2020 VA examination report, when asked which of the following best summarized the Veteran's level of occupational and social impairment, the psychologist checked occupational and social impairment with deficiencies in most areas, which is the level of severity described under the 70 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the service-connected PTSD with insomnia, the examiner's conclusion that the PTSD with insomnia was summarized best by the criteria described under the 70 percent rating is evidence against a finding that the PTSD with insomnia caused total occupational and social impairment to warrant a 100 percent rating. Thus, the Board finds the preponderance of the evidence is against symptoms of the severity, frequency, or duration as those resulting in total occupational and social impairment, and a rating in excess of 70 percent from July 11, 2014 for PTSD with insomnia is denied. 3. An initial compensable rating for right inguinal hernia An inguinal hernia is rated under Diagnostic Code 7338, which provides for a 10 percent rating for postoperative recurrent, readily reducible hernia well supported by truss or belt. A 30 percent rating is awarded for a small, postoperative, recurrent, or unoperated irremediable hernia not well supported by truss, or not readily reducible. The maximum, 60 percent rating is awarded for large postoperative, recurrent hernia not well supported under ordinary conditions and not readily reducible when considered inoperable. 38 C.F.R. § 4.114, DC 7338. After reviewing the evidence, the Board finds the criteria for a compensable rating for right inguinal hernia have not been met because the weight of the evidence does not show a current hernia. The record shows the Veteran experienced an inguinal hernia during service, which was operated on and resulted in significant impairment to his right lower extremity. However, the evidence does not show that the hernia was recurrent, required support from a truss or belt, or is irremediable. The August 2013 VA examiner noted the Veteran's hernia resolved with surgery, detected no hernia on examination, and found no medical indication for a supporting belt. The functional impairment discussed by the Veteran and the examiner dealt with the lower extremities, not the hernia itself. In the July 2014 evaluation, the private provider found that the Veteran experienced right inguinal pain associated with a hernia that was not cured with surgery and that palpation of the region clearly revealed a non-resolved right inguinal hernia and surgical failure. The May 2015 VA examiner noted the Veteran's hernia was surgically repaired in August 2011. The examiner detected no hernia or recurrence of hernia on examination but noted moderate weakness in the right lower extremity secondary to the hernia, which symptoms have been fully assessed in a separate rating. Similarly, the February 2020 examiner found the hernia had been operated on, there was no current hernia, and there was no medical indication for a support belt. The Board finds the private evaluator's medical opinion that the Veteran has a current hernia after failed surgery is outweighed by the opinions of three, separate VA examiners, all of whom documented no evidence of a current hernia, as well as the VA treatment records, which repeatedly document no treatment or further repair of a hernia. Rather, a VA treating provider in October 2015 specifically noted the history of hernia and surgical repair and found no need for further surgical prevention. Additionally, the Veteran's reports of symptoms and impairment generally revolve around his right lower extremity disability, which was caused by the hernia repair and has been rated separately. Thus, the preponderance of the evidence is against assigning a compensable rating for the Veteran's hernia, and a separate, compensable rating for the right inguinal hernia is denied. 4. An initial compensable rating for hernia scar The Veteran's hernia scar is rated under Diagnostic Code 7805. Diagnostic Code 7805 instructs that any disabling effects, not considered in a rating provided under Diagnostic Codes 7800-04, are rated under an appropriate Diagnostic Code. Diagnostic Code 7804 provides for a 10 percent rating for one or two scars that are unstable or painful and increased ratings based on the number of painful and/or unstable scars. An unstable scar is defined as one where there is frequent loss of covering of skin over the scar. Diagnostic Code 7802 provides for a 10 percent rating for scars, not of the head, face, or neck, which are not associated with underlying soft tissue damage and are 929 square centimeters or greater in area. 38 C.F.R. § 4.118. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. Previously, under Diagnostic Code 7802, the term "superficial" was used to describe a scar "not associated with underlying soft tissue damage" the remainder of the criteria were not significantly changed. Diagnostic Codes 7804 and 7805 were not changed by the August 13, 2018, amendments. The Board finds the criteria for a compensable rating for hernia scar have not been met. First, the evidence does not show functional impairment from the scar. Neither the August 2013 nor the February 2020 VA examiners noted functional impairment from the scar itself. The Veteran has also not reported functional impairment. Next, the evidence does not show that the scar is painful, unstable, or at least 929 square centimeters. Both the August 2013 and February 2020 VA examiners recorded the scar as linear, between four and six centimeters in length and 0.3 and 0.5 centimeters in width. Neither VA examiner documented the scar was painful or unstable. The Veteran has also not reported the scar loses skin covering. The Board notes that the Veteran's representative wrote the Veteran suffered from "painful scars" in the September 2021 brief. However, the Veteran has not reported that the hernia scar was painful in statements to VA or during examinations. Lastly, The Veteran's scar is not of the head, face, or neck, not deep, and not associated with underlying soft tissue damage; therefore, the other Diagnostic Codes pertaining to scars are not applicable. Accordingly, the preponderance of the evidence is against assigning a compensable rating for the hernia scar. REASONS FOR REMAND 1. Entitlement to compensation for TDIU is remanded. The Veteran asserts that he is unemployable due to his service-connected disabilities. His combined disability rating has been at least 70 percent throughout the period on appeal, which satisfies the threshold requirements for TDIU. See 38 C.F.R. § 4.16(a). The Veteran reported difficulties in college and at two subsequent retail positions. A May 2013 employee separation report shows the Veteran voluntarily resigned from one of these jobs stating that the commute was too long and he did not think the job was right for him. In April 2018 treatment, he reported doing well at his job as a sales and marketing manager. During the February 2020 mental health examination, the Veteran reported this role was for a "family-owned" appliance business and he was not able to work 40 hours most weeks because of his physical limitations, but he reported his employers were supportive and considerate of his limitations. A high disability rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment, but the question for TDIU is whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In determining whether a veteran is able to secure and follow substantially gainful employment, VA should consider whether the employment is in a protected environment, such as a family business or sheltered workshop. See 38 C.F.R. § 4.16(a). It is unclear from the evidence whether the Veteran has a familial relationship with his employer, or it is a business run by another family. Additionally, the Board finds more information would be helpful to determine what kinds of accommodations the Veteran's employer has provided him to maintain his employment. The matters are REMANDED for the following action: 1. Request additional information from the Veteran to identify his current employer. Send a letter to the Veteran's employer requesting information about his current position as a sales and marketing manager and tasks associated with that role. 2. Request the Veteran complete a statement or otherwise provide evidence of accommodations he receives at work. A. Keninger Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.