Citation Nr: 21008978 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-09 948 DATE: February 18, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a low back disability is remanded. Entitlement to an initial rating in excess of 10 percent for an inguinal hernia scar is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1976 to March 1985. This matter comes before the Board on appeal from July 2010 and February 2014 rating decisions of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in July 2017. In January 2018, the Board granted an initial rating of 10 percent, but no higher, for a painful inguinal hernia scar, and remanded the issues of entitlement to an initial compensable rating for pes planus and entitlement to service connection for a cervical spine disability, right hip disability, and inguinal hernia residuals other than a scar. The Veteran appealed the Board’s denial of an initial rating in excess of 10 percent for an inguinal hernia scar to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the January 2018 Board decision insofar as it denied an initial rating in excess of 10 percent for an inguinal hernia scar, and remanded that matter to the Board for compliance with the JMPR instructions. The Parties agreed that an updated examination was warranted as the Veteran reported an increase in the severity of his hernia scar. In April 2019, the Board remanded for additional development the issue of entitlement to an initial rating in excess of 10 percent for inguinal hernia scar(s), as well as the issue of entitlement to a TDIU. In September 2019, the AOJ granted service connection for cervical strain. Thus, this issue is no longer before the Board. In March 2020, the Board granted an initial rating of 30 percent, but no higher, for bilateral pes planus. The Board also granted entitlement to service connection for a right hip disability, inguinal hernia residuals other than a scar, and a bilateral foot condition other than pes planus. The Board also remanded the issue of entitlement to an initial rating in excess of 10 percent for lumbar strain for issuance of a Statement of the Case (SOC). The AOJ issued the SOC and the Veteran subsequently perfected the appeal of that issue, which is now before the Board. In July 2020, the AOJ implemented the March 2020 Board decision, including the awards of service connection granted in that decision. The Board acknowledges the Veteran’s September 2020 statement as to the impairment resulting from his disabilities (including his low back disability) and observes that the Veteran filed a claim in January 2021. See January 2021 VA Form 21-526EZ. If the Veteran believes that the retroactive awards assigned by the July 2020 rating decision are erroneous, he is advised to consult with his representative as to whether to seek review of the July 2020 rating decision. 1. Entitlement to an initial rating in excess of 10 percent for a low back disability is remanded. The Board sincerely regrets the delay, but additional development is necessary. In this regard, the Veteran was last examined in March 2019, and in September 2020 the Veteran reported the severity of his back disability, including the many medications that he takes. See September 2020 Correspondence. Indeed, he filed a claim in January 2021 and explicitly stated that his back was worse than it was the previous year. See January 2021 VA Form 21-526EZ. Moreover, the March 2019 examination report appears to be based on an incomplete history of the Veteran’s low back disability. The Board observes that the March 2019 examination report notes only the diagnosis of lumbar strain, while the record contains competent medical evidence that the Veteran has degenerative disc disease of the lumbar spine that is etiologically related to his military service. See, e.g., August 2017 Dr. J.M.L. Opinion. On remand, the Veteran should be afforded an updated examination that is based on an accurate history of his disability. Complete VA treatment records and any outstanding relevant private treatment records should be secured. 2. Entitlement to an initial rating in excess of 10 percent for an inguinal hernia scar is remanded. 3. Entitlement to SMC based on loss of use of a creative organ is remanded. The issue of SMC is raised by the record, as at the November 2020 scars examination, the Veteran reported that his inguinal hernia scar affects his sex life. See November 2020 Scars Examination Report. Development is necessary as to whether this interference manifests to a degree commensurate with loss of use of a creative organ. Additionally, the Board observes that the Veteran has never been afforded an examination focused on his hernia residuals other than scars due to the COVID pandemic, and the examiner’s description of scar impairment includes hernia-related statements. Further development is necessary to differentiate the non-scar hernia residuals from his scar residuals. On remand, the Veteran should be afforded an examination focused on the question of SMC and impairment from the Veteran’s hernia residuals. 4. Entitlement to a TDIU is remanded. In December 2010, the Veteran reported that he became too disabled to work in 2007. See December 2010 VA Form 21-8940. In April 2019, the Board directed that the Veteran be provided with a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and directed to complete the same. See April 2019 Board Remand. The AOJ provided this form in September 2019. See September 2019 Subsequent Development Letter. The record reflects that the Veteran has not returned the VA Form 21-8940 provided by the AOJ. However, he has explicitly requested that the Board consider entitlement to a 100 percent rating based on unemployability. See September 2020 VA Form 9. The duty to assist is not a one-way street. It is essential that the Veteran cooperate with the Board. If he fails to do so his claim may be denied because the Board lacks information necessary to grant the benefit sought. Here, additional development is necessary as to the Veteran’s income and employment status over the appeal, as the record reflects that the Veteran participated in vocational rehabilitation and was placed in employment. See June 2019 Notification Letter. On remand, the Veteran should be provided a copy of VA Form 21-8940 and requested to complete the same. His complete Veteran Readiness and Employment (VR&E) file should also be secured. The matters are REMANDED for the following action: 1. Secure complete VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Secure the Veteran’s complete VR&E file. 4. Provide the Veteran a copy of VA Form 21-8940 and request that he complete the same. 5. Then schedule the Veteran for an examination as to the nature and current severity of his low back disability. The examiner should be provided with a copy of the claims file. All findings should be reported in detail. (a). The examiner should assess the severity of the Veteran’s low back disability. In completing the examination report, the examiner’s attention is invited to the opinion of the Veteran’s physician that his degenerative disc disease is etiologically related to his military service. See August 2017 Dr. J.M.L. Opinion (August 10, 2017 Correspondence). (b). The joints involved should be tested (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c). In assessing functional loss, please also provide an opinion describing functional impairment of the Veteran’s back disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. Then schedule the Veteran for an examination as to the nature and severity of his hernia residuals, to include scar(s) related to the same. The examiner should be provided with a copy of the claims file. All findings should be reported in detail. The examiner should address the following: (a) Assess the severity of the Veteran’s hernia residuals, including scars. (b) Please state whether it is at least as likely as not (50 percent or greater probability) there is diminished function of the Veteran’s creative organ due to his residual hernia scar. In addressing this question, the examiner’s attention is invited to the November 2020 Scars Examination Report, where the Veteran reported that his hernia scars interfere with his sex life. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide either or both opinions without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.