Citation Nr: 21009700 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 06-19 514 DATE: February 23, 2021 ORDER An extraschedular disability rating of 10 percent, and not in excess thereof, for status-post left inguinal hernia repair with ilioinguinal nerve entrapment is granted. FINDING OF FACT The schedular rating criteria under 38 C.F.R. § 4.123, 4.124a, Diagnostic Codes (DCs) 8530, 8630 are inadequate to rate the Veteran’s status-post left inguinal hernia repair with ilioinguinal nerve entrapment; the disability results in an additional impairment of earning capacity that more nearly approximates a 10 percent rating. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an extraschedular rating of 10 percent, and not in excess thereof, for status-post left inguinal hernia repair with ilioinguinal nerve entrapment have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Army from October 1991 to September 1995. His decorations include the National Defense Service Medal, the Army Service Ribbon, and the Overseas Service Ribbon. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, denied a higher rating for the Veteran’s inguinal hernia repair residuals with ilioinguinal nerve entrapment and erectile dysfunction. In an August 2007 rating decision, the RO recharacterized the Veteran’s inguinal hernia repair disability as status-post left inguinal hernia repair with ilioinguinal nerve entrapment, evaluated as 10 percent disabling. In the same rating decision, the RO granted service connection for erectile dysfunction associated with status post left inguinal hernia repair with ilioinguinal nerve entrapment, evaluated as noncompensable, and granted special monthly compensation based on the loss of use of a creative organ, with an effective date of January 4, 2005. This matter was previously before the Board in August 2010 and August 2012, when it was remanded for additional development. In July 2013, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in urology; the requested VHA opinion was incorporated into the record in August 2013. In April 2014, the Board denied entitlement to a higher rating for the Veteran’s inguinal hernia repair residuals on a schedular basis and referred the matter to the Under Secretary for Benefits, or the Director of Compensation and Pension Service (Director), for consideration of an extraschedular rating. In October 2015, the Director issued an opinion denying consideration on an extraschedular basis for the Veteran’s inguinal hernia repair residuals. In an March 2016 decision, the Board denied the Veteran’s appeal. He then appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 panel decision, the Court vacated the Board’s April 2014 decision and remanded the matter for readjudication. An extraschedular disability rating of 10 percent for status-post left inguinal hernia repair with ilioinguinal nerve entrapment is granted. The Veteran asserts that a higher rating is warranted for his inguinal hernia repair residuals, as his disability is manifested by severe pain and impaired sensation in the left thigh and groin area, and associated functional impairment, including the inability to wear tight-fitting clothing. Additionally, the Veteran asserts that his disability significantly interferes with his ability to have sexual intercourse. As noted, the Board denied a schedular rating in excess of 10 percent for the Veteran’s inguinal hernia repair residuals in its April 2014 decision. Thus, the only question before the Board is whether the Veteran’s disability warrants a rating in excess of 10 percent on an extraschedular basis. In general, disability ratings are determined by applying the VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, in exceptional cases, schedular ratings may be inadequate. See 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated periods of hospitalization so as to render the regular schedular standards impractical. See id. There is a three-step inquiry for determining whether an extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for a service-connected disability are inadequate. Id. at 115. Second, if the schedular evaluation does not contemplate the level of disability, and symptomatology and is found to be inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors, such as “governing norms.” Id. at 115-16 (citing 38 C.F.R. § 3.321(b)(1) and noting that related factors include marked interference with employment and frequent periods of hospitalization). Third, if the rating schedule is inadequate to evaluate a claimant's disability picture, and that picture has 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, in the interests of justice, the claimant’s disability picture requires the assignment of an extraschedular rating. See id. at 116. In vacating the Board’s March 2016 decision, the Court noted that the Board reached an opposite conclusion in its 2016 decision from the April 2014 Board’s referral decision with respect to whether the Veteran’s disability picture was usual or exceptional so as to render the schedular rating criteria inadequate. Specifically, the Court noted that the Board’s April 2014 referral decision was unequivocal in finding that the unusual or exceptional disability picture associated with the Veteran’s left inguinal nerve entrapment renders the schedular rating criteria under 38 C.F.R. § 4.123, 4.124a, Diagnostic Codes 8530, 8630 inadequate, and that the lay and medical evidence reflects significant impairment of his occupational and social activities not represented by the current 10 percent evaluation. The Court concluded that, while the Board was not bound by its 2014 referral decision, it did not explain why it reached an opposite conclusion in its 2016 on mostly the same facts. Based on the foregoing, the Board finds that the April 2014 referral decision by the Board weighs heavily in favor of finding that the unusual or exceptional disability picture associated with the Veteran’s inguinal hernia disability residuals renders the schedular rating criteria under 38 C.F.R. § 4.123, 4.124a, Diagnostic Codes 8530, 8630 inadequate, and that the lay and medical evidence reflects significant impairment of his occupational and social activities not represented by the current 10 percent schedular evaluation. As noted in the Court’s May 2020 panel decision, while the Board is not bound by its 2014 referral decision, the Board’s prior unequivocal findings in the April 2014 referral decision caused the Veteran to believe that he received a “yes” to an extraschedular rating in 2014, and then received a “no” in the 2016 Board decision. Accordingly, and after resolving reasonable doubt in the Veteran’s favor with respect to these questions, the Board finds that the first two Thun criteria are met. Therefore, the remaining question is whether, in the interests of justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. The Board finds that, to accord justice, the Veteran’s disability requires the assignment of an extraschedular rating of 10 percent for symptoms and impairment associated with inguinal hernia repair residuals with ilioinguinal nerve entrapment. In assigning the extraschedular rating of 10 percent in this case, the Board notes and has applied VA’s general rating principles that urge recognition of the actual additional impairment caused by a service-connected disability. See 38 C.F.R. § 4.21 (rating regulations do not require that all cases show all findings specified by the Rating Schedule, but it is important to show the disability and to coordinate rating with impairment of function). The Board finds that the evidence is in relative equipoise as whether Veteran’s inguinal hernia residuals include urinary symptoms. Evidence weighing in favor of thing finding includes the September 2012 VA examiner’s opinion that the etiology of the Veteran’s voiding dysfunction was the Veteran’s inguinal hernia surgery. The evidence weighing against thing finding includes the August 2013 VHA opinion that it is highly unlikely that the Veteran’s voiding dysfunction, characterized by urinary leakage and urinary urgency, is associated with the Veteran’s left inguinal hernia repair residuals with ilioinguinal nerve entrapment. Based on the foregoing, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s voiding dysfunction, characterized by urinary leakage and urinary urgency, is a residual of his inguinal hernia. The Veteran’s urinary symptoms are not contemplated by the schedular rating criteria for paralysis of the ilio-inguinal nerve under 38 C.F.R. § 4.124a, DC 8530/8730. Also of note is the September 2012 VA examiner’s opinion that the Veteran’s ilio-inguinal nerve entrapment impacted his ability to work. Although there was no longer a hernia present, the examiner noted that due to the ilioinguinal nerve entrapment, the Veteran had pain that was worsened by walking, squatting, or lifting, which slowed his work performance and caused him to work longer hours. The examiner also noted that the Veteran was unable to wear tight-fitting clothing, as it would cause pain at the thigh. Accordingly, the Board finds that the average impairment of earning capacity resulting from the Veteran’s inguinal hernia disability residuals, above and beyond that which is contemplated by the schedular rating criteria, more nearly approximates a 10 percent rating on an extraschedular basis. Based on the foregoing, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that the assignment of an extraschedular rating of 10 percent for symptoms and impairment associated with inguinal hernia repair residuals with ilioinguinal nerve entrapment. The extraschedular 10 percent rating accounts for all of the symptoms and resulting functional impairment, as reported by the Veteran and in the medical records, that are not contemplated by the schedular rating under 38 C.F.R. § 4.124a, DC 8530/8730. The record reflects that the Veteran’s inguinal hernia residuals include groin and testicular pain/tenderness, constant pain at the left lower extremity to a moderate degree, intermittent pain (usually dull) at the left lower extremity to a severe degree, paresthesias and/or dysesthesias of the left lower extremity to a severe degree, and numbness of the left lower extremity to a severe degree. See, e.g., June 2005, January 2011, and September 2012 VA examination report. The Veteran has also reported a loss of some motor function of his left quadriceps muscle. See, e.g., November 2020 Veteran statement. These symptoms are contemplated by the 10 percent schedular rating assigned for severe to complete paralysis under 38 C.F.R. § 4.121a, DC 8530/8730. A comparison between the level of severity of the Veteran’s symptoms with the established criteria found in the rating schedule for ilioinguinal nerve damage shows that the schedular rating criteria reasonably describe the disability and contemplate the Veteran’s sensory and motor symptoms of radiating pain from groin to the left thigh, numbness or sensory dysfunction, as well as any motor impairment resulting from severe to complete paralysis of the ilio-inguinal nerve are contemplated by the rating schedule. Accordingly, a grant of a separate extraschedular rating for the same symptoms would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). As to the complaints of sexual dysfunction, the record reflects that the Veteran is service connected for erectile dysfunction and has been granted special monthly compensation based on loss of use of creative organ, effective January 4, 2005, which already contemplates erectile dysfunction and its associated symptomatology. See 38 C.F.R. §§ 4.115a, 4.115b Note, 3.350(a)(1). Accordingly, a grant of a separate extraschedular rating for the same symptom erectile dysfunction would constitute impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.124a; Esteban, 6 Vet. App. at 261-62. In light of the above, and after resolving reasonable doubt in the Veteran’s favor, the criteria for a 10 percent extraschedular rating for symptoms and impairment associated with the inguinal hernia residuals, but no higher, have been approximated for the entire rating period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 3.321 (b). The 10 percent extraschedular rating under 38 C.F.R. § 3.321(b) is to be assigned in addition to, and separately rated apart from, any schedular rating percentage assigned for inguinal hernia residuals under 38 C.F.R. § 4.124a, DC 8530/8730. The appeal is granted. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb 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.