Citation Nr: 21006733 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 10-16 745 DATE: February 5, 2021 ORDER An initial rating in excess of 30 percent for residuals of ruptured colon with post-surgical abdominal neuralgia on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 is denied. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) is granted. FINDINGS OF FACT 1. The Veteran’s residuals of ruptured colon with post-surgical abdominal neuralgia do not result in symptoms not contemplated by the applicable rating criteria for his disabilities. 2. Resolving all doubt in favor of the Veteran, for the entire appeal period stemming from his June 1, 2007, claim, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for residuals of ruptured colon with post-surgical abdominal neuralgia on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321. 2. The criteria for a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1962 to April 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in July 2008 and March 2011 by a Department of Veterans Affairs (VA) Regional Office. In July 2010, the Veteran testified before a Decision Review Officer (DRO) in regard to his claim for a TDIU and, in June 2014, he and his son testified at a Board hearing before the undersigned Veterans Law Judge in regard to both claims. Transcripts of both hearings have been associated with the record. In September 2014, the Board remanded the issues of entitlement to an initial rating in excess of 10 percent for right lower quadrant abdominal neuralgia on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 and entitlement to a TDIU for additional development. While on remand, in a June 2017 rating decision, the Agency of Original Jurisdiction (AOJ) combined the Veteran’s colon and neuralgia disabilities, recharacterized such disabilities as residuals of ruptured colon with post-surgical abdominal neuralgia and increased the rating to 30 percent for the entire appeal period. Thus, the issue has been recharacterized as shown on the title page of this decision and the appeal now returns for further appellate review. 1. Entitlement to an initial rating in excess of 30 percent for residuals of ruptured colon with post-surgical abdominal neuralgia on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 An extra-schedular rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as “marked interference with employment” and “frequent periods of hospitalization.” Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. Id. Where the Board finds that an extra-schedular rating may be warranted based on the above factors, the Board cannot grant it in the first instance. Rather, it must remand the claim to the AOJ for referral to the Director of Compensation Service (Director). See Thun, supra. In the instant case, the Board remanded the claim in September 2014 for referral to the Director and, in a December 2020 administrative decision, the Director denied an extra-schedular rating, which the AOJ continued in the December 2020 supplemental statement of the case. However, the Board must conduct its own de novo review of the issue. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Turning to the first element of Thun outlined above, to warrant an increased rating on an extra-schedular basis, the Veteran’s level of impairment due to his residuals of ruptured colon with post-surgical abdominal neuralgia must not be adequately contemplated by the currently assigned schedular rating. In this regard, as discussed previously, the Veteran’s right lower quadrant abdominal neuralgia was combined with his residuals of ruptured colon ,and recharacterized as residuals of ruptured colon with post-surgical abdominal neuralgia for the entire appeal period, stemming from April 5, 2010, the date of service connection for the latter disability, pursuant to Diagnostic Code (DC) 8730-7301. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. The Board observes that, in the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. The Veteran’s right lower quadrant abdominal neuralgia had been rated by analogy under DC 8730 for neuralgia of the ilioinguinal nerve. In this regard, DC 8530 provides for a single 10 percent rating for severe to complete paralysis of the ilioinguinal nerve. Similarly, a maximum 10 percent rating is assigned for neuritis and neuralgia of the ilioinguinal nerve when these disorders cause manifestations analogous to severe to complete paralysis. 38 C.F.R. §§ 4.123, 4.124, 4.124a, DCs 8530, 8630, 8730. The rating criteria for peritoneal adhesions are found at DC 7301, which provides for a 10 percent rating for moderate adhesions with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is assigned for moderately severe adhesions with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is assigned for severe adhesions with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Here, the Board has carefully compared the level of severity and symptomatology of the Veteran’s service-connected residuals of ruptured colon with post-surgical abdominal neuralgia with the established criteria found in the rating schedule. As the disability has been rated as 30 percent disabling under DC 8730-7301, the Board finds that the Veteran’s symptomatology for his residuals of ruptured colon with post-surgical abdominal neuralgia is fully addressed by the rating criteria under which such disability is currently rated as such clearly contemplates his constant, severe nerve pain. In this regard, during his October 2010 VA examination, the Veteran reported constant pain in the right lower quadrant that was sharp, burning, and stabbing, and worsened with walking, bending and twisting. The only relief was stretching out in his recliner. On examination, there was tenderness to guarding in the right lower quadrant with deep palpation. The examiner noted that an EMG was normal, and found that neuralgia was present. He indicated that the Veteran reported he was unable to work due to pain and consequences of medication. He experienced decreased concentration, difficulty following instructions, decreased mobility, problems with lifting and carrying, lack of stamina, and pain. There were also effects on his daily activities because his disability limited him from lifting, vacuuming, walking, bending, twisting, and playing with grandchildren. The Veteran was afforded another VA examination in February 2013. The diagnosis was neuralgia of the ilioinguinal nerve. It was noted that the Veteran complained of abdominal pain with the only explanation given as neuralgia. Strength examination, reflex examination, and sensory examination were all normal. The Veteran’s gait was also normal. The examiner observed that the Veteran had neuralgia affecting the left ilio-inguinal nerve, but it did not cause paralysis or sensory dysfunction. Rather, it resulted in pain. Although the Veteran used a cane regularly, it was not for his ilioinguinal neuralgia. VA treatment records also document complaints of abdominal pain. At the June 2014 Board hearing, the Veteran testified that he experienced constant severe pain due to his disability. He reported that it hurt to walk, and it was extremely difficult to walk upstairs and get in and out of the car. He could only walk five to 10 minutes and then had to quit due to pain. Essentially, any movement was painful and he did not do much activity. He also testified that sitting in one position for a long time was uncomfortable. Upon questioning, he indicated that he did not experience any other symptoms, just constant pain. During the Veteran’s January 2015 intestinal VA examination, he reported constant pain that averaged around a 6 to 7 and had trouble walking, getting up and down from a chair, and getting out of a car. He still took gabapentin, which helped his nerve pain somewhat, and used Lidocaine patches at least one per day. His symptoms included severe pain as he was barely able to touch his right lower querant without eliciting severe pain, difficulty sleeping, and bowel incontinence. In May 2017, the Veteran underwent another intestinal VA examination. At such time, his symptoms included chronic, persistent, moderate/severe abdominal pain and alternating diarrhea and constipation, and pulling pain on attempting work or aggravated by movements of the body. The Veteran was afforded a peripheral neuropathy VA examination in October 2020. At such time, he reported that he had severe pain and was unable to move. His symptoms included right lower extremity severe constant pain, paresthesias and/or dysesthesias, and numbness. His right knee extension, and ankle plantar and dorsiflexion had active movement against gravity and he had normal reflexes and sensory examinations. Based on such findings, the examiner diagnosed severe incomplete paralysis of the ilio-inguinal nerve. Based upon the foregoing, the Board finds that the Veteran’s residuals of ruptured colon with post-surgical abdominal neuralgia is manifested by chronic, persistent, moderate/severe abdominal pain and alternating diarrhea and constipation, pulling pain on attempting work or aggravated by movements of the body, and constant severe pain related to severe incomplete paralysis of the ilio-inguinal nerve. Consequently, as all such symptomatology is specifically contemplated by the DCs under which such disability is rated, the Board finds that the schedular criteria is adequate to evaluate the Veteran’s residuals of ruptured colon with post-surgical abdominal neuralgia. Moreover, the Veteran has already been awarded separate ratings for his abdominal scars and hernia, and no other residuals have been observed or reported. Furthermore, the Board notes that as of January 8, 2018, VA amended 38 C.F.R. § 3.321(b)(1) so as to preclude extra-schedular consideration based on the combined effects of multiple service-connected disabilities. Such amendment applies to all applications for benefits that are received by VA on or after January 8, 2018 or that were pending before VA, the Court, or the Federal Circuit on that date, which includes the instant appeal. 82 Fed. Reg. 57830. Consequently, an initial rating in excess of 30 percent for residuals of ruptured colon with post-surgical abdominal neuralgia due to the collective impact of all service-connected disabilities is precluded by law, and such aspect of the claim must be denied. Therefore, the Board finds that the rating criteria reasonably describe the Veteran’s disability level and symptomatology of his service-connected residuals of ruptured colon with post-surgical abdominal neuralgia. As such, the Board finds that the rating schedule is adequate to evaluate his disability picture. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Thus, consistent with the Director’s determination, the Board concludes that an extra-schedular rating is not warranted. Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In sum, the Board finds that entitlement to an initial rating in excess of 30 percent for residuals of ruptured colon with post-surgical abdominal neuralgia on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3, 4.7. 2. Entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall 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). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities”. Moreover, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. In the instant case, VA received his claim for a TDIU on June 1, 2007, and, for the entire appeal period, he has been service-connected for residuals of ruptured colon with post-surgical abdominal neuralgia, hernia, and surgical scars of the abdomen. While such disabilities are of a common etiology and, thus may be considered as one for TDIU purposes, the Veteran does not meet the schedular criteria for consideration of a TDIU for the entire appeal period. Nonetheless, as the evidence suggested that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, the Board remanded the appeal in September 2014 for referral to the Director for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. § 4.16 (b). In December 2020, the Director reviewed the record and opined that an extra-schedular TDIU was not warranted. Nonetheless, the Board must now undertake its own de novo review of the claim. In regard to the Veteran’s employment history, he reported in his June 2007 TDIU application that he last worked in sales in October 2003. He also indicated that he completed high school, but had no additional education or training. As pertinent to the functional impairment associated with the Veteran’s service-connected disabilities, a December 2006 opinion from his VA physician indicated that he was unable to stand, walk, bend, twist, or sit for extended periods of time. Further, due to his pain medication, his ability to concentrate was impaired. The examiner opined that it was very unlikely that the Veteran would ever be capable of returning to gainful employment considering his age and multiple other chronic health problems. Moreover, the record showed that the Veteran is in receipt of SSA disability benefits due to his residual symptoms from his hernia repair. During his July 2008 VA examination, the examiner determined that the Veteran had ongoing pain to the right lower abdomen, which would make it difficult for him to engage in any physical activities that were strenuous. He also noted that it would be difficult for the Veteran to be fully employed because of the pain that he was experiencing from the hernia site and the post-operative colonostomy site. He further noted that the Veteran’s age, coupled with his other chronic conditions, also contributed to his inability to be productively employed. The October 2010 VA examiner also determined that the Veteran would be unable to work due to pain and the consequences of his medication, which caused drowsiness and difficulty concentrating. However, the February 2013 VA examiner indicated that examination of the Veteran’s abdominal condition did not reveal any objective evidence of an impact on the ability to work and indicated that his general state of debility may be related to his advanced age and causes other than his claimed condition, but he could not speculate as the Veteran refused to discuss other conditions and only wanted to focus on chronic abdominal pain. He further indicated that the Veteran’s other service-connected intestinal surgery residuals and hernia conditions did not impact his ability to work. However, the examiner did not offer any sort of rationale for these findings. Nonetheless, the January 2015 VA examiner found that the Veteran would not be employable in any physical capacity due to his intestinal surgery residuals and hernia as he had constant pain and difficulty getting up and down, and standing. He further indicated that the Veteran was unable to concentrate on mental tasks due to the pain and/or pain medication, and was not employable for sedentary work due to the amount of pain and inability to focus or concentrate. The May 2017 VA examiner also found that the Veteran’s intestinal surgery residuals and hernia impacted his ability to work as he had not been able to work since September 2003 due to pain. Specifically, he could not stand for more than 5 minutes without severe pain and had severe issues with sleeping due to pain, which affected his concentration during the day. He also could not do any bending, pushing, or pulling and had difficulty concentrating due to his medication. Thus, the examiner opined that the Veteran would not be able to perform physical or sedentary work due to his pain condition and still having to take 1 to 2 Lortab per day due to his multiple gastrointestinal surgeries. Additionally, the October 2020 VA examiner determined that the Veteran was unable to work due to his right lower quadrant neuralgia as it was difficult for him to perform sedentary and occupational jobs due to his severe pain. Such would also cause the Veteran to take frequent breaks, which the examiner noted that employers were not willing to accommodate such need. He further noted that the Veteran could not lift, push, or pull more than 50 pounds due to his right lower quadrant pain, and had such pain when going up and down the steps and ladder. He also could not run due to his pain and he was unable to drive for long periods of time. Based on a review of the foregoing evidence, the Board finds that a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted for the entire appeal period stemming from the Veteran’s June 1, 2007, claim. In this regard, as detailed above, the record reflects that his service-connected disabilities prohibited him from securing and following a substantially gainful occupation consistent with his education and work history, as it is shown that he is unable to execute the physical and mental acts necessary to perform manual or sedentary employment. Thus, resolving all doubt in the Veteran’s favor, the Board finds that an entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.