Citation Nr: 21010054 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-47 797 DATE: February 24, 2021 ORDER Entitlement to a separate extraschedular rating of 20 percent, but no higher, for residuals of right inguinal hernia status post hernioplasty manifesting as limitations of motion (bending, twisting, sitting, crossing legs, lifting) and chronic pain (in the right inguinal area, testicle, side of penis, and inner aspect of the upper thigh) is granted. FINDING OF FACT The Veteran’s residuals of right inguinal hernia status post hernioplasty manifesting as limitations of motion (bending, twisting, sitting, crossing legs, lifting) and chronic pain (in the right inguinal area, testicle, side of penis, and inner aspect of the upper thigh), at most, nearly approximate a degree of moderate severity warranting an extraschedular rating of 20 percent but no higher. CONCLUSION OF LAW The criteria for entitlement to a separate extraschedular rating of 20 percent, but no higher, for residuals of right inguinal hernia status post hernioplasty manifesting as limitations of motion (bending, twisting, sitting, crossing legs, lifting) and chronic pain (in the right inguinal area, testicle, side of penis, and inner aspect of the upper thigh) have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code (DC) 4.124a, DC 8520 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from November 1962 to November 1965. In October 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In a February 2020 Decision, the Board: (a) denied entitlement to a schedular rating above 10 percent for the disability herein; and (b) remanded entitlement to an extraschedular rating above 10 percent for the disability herein. Specifically, the Board remanded for referral to the Director of Compensation Service for consideration of an extraschedular rating after determining that all the Veteran’s symptoms were not contemplated by the applicable rating criteria. 1. Entitlement to an extraschedular rating above 10 percent for right inguinal hernia status post hernioplasty Under the doctrine of law of the case, questions settled on a former appeal of the same case are no longer open for review. Browder v. Brown, 5 Vet. App. 268, 270 (1993). The law of the case doctrine operates to preclude reconsideration of identical issues. Johnson v. Brown, 7 Vet. App. 25, 26 (1994). As such, judicial bodies will not generally review or reconsider issues that already have been decided in a previous appeal. McCall v. Brown, 6 Vet. App. 215 (1994) (citing Kori Corp. v. Wilco Marsh Buggies & Draglines, 761 F.2d 649, 657 (Fed. Cir. 1985); Browder, supra). Preliminarily, the Board notes that the February 2020 Board Decision indicated that the disability herein represented an exceptional disability picture, that his symptoms were not contemplated under the schedular criteria, and that it interfered with his employment; as such, the Board found that referral to the Director of Compensation Service was warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As such, under the law of the case doctrine, reconsideration of the Board’s February 2020 findings that the disability herein satisfied the first two prongs under Thun for referral for an extraschedular rating would be futile and will not be disturbed. Id. In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. However, in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation, commensurate with the average earning capacity impairment due exclusively to the service-connected disability, may be assigned. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. In an April 2007 Rating Decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for the disability herein and assigned a 10 percent rating effective November 21, 2006. The AOJ mailed the Veteran a May 2007 Notification Letter containing appeal rights, but the Veteran did not timely appeal and the April 2007 Rating Decision became final. On June 12, 2015, VA received a VA 21-526EZ that initiated the current appeal stream for an increased rating above 10 percent for the disability herein. The disability herein has been rated at 10 percent under DC 7338 since November 21, 2006; separate service connection has also already been granted for an associated scar. See July 2019 Codesheet; 38 C.F.R. § 4.114, DC 7338. The Veteran generally contends that the manifestations of the disability herein warrant a rating higher than 10 percent. See June 2015 VA Form 21-526EZ; November 2015 Notice of Disagreement (NOD); March 2016 Letter from Michael Angelo Construction; March 2016 VA Form 9; June 2016 VA Form 21-526EZ; March 2017 NOD; August 2017 Correspondence; August 2017 VA Form 9; October 2019 Board hearing transcript; November 2019 private opinion by Dr. EV; November 2019 Brief; January 2021 Brief. Under DC 7338 (which rates inguinal hernia), a noncompensable rating is warranted for an inguinal hernia that is: (a) small, reducible, or without true hernia protrusion; and/or (b) not operated, but remediable. 38 C.F.R. § 4.114, DC 7338. A 10 percent rating is warranted for an inguinal hernia that is postoperative recurrent, readily reducible, and well supported by truss or belt. Id. A 30 percent rating is warranted for an inguinal hernia that is small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. Id. A 60 percent (maximum schedular) rating is warranted for an inguinal hernia that is large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. Id. Another 10 percent is added for bilateral involvement, provided the second hernia is compensable; this means that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. Id at NOTE. As discussed above, the February 2020 Board Decision previously denied entitlement to an increased rating for the disability herein on a schedular basis, finding that the disability herein represented an exceptional disability picture, that its symptoms were not contemplated under the schedular criteria, and that it interfered with employment. 38 C.F.R. § 3.321. Accordingly, the Board’s analysis herein is solely focused on determining an extraschedular disability rating based on the Veteran’s disability picture. As previously stated in the February 2020 Board Decision, DC 7338 did not contemplate all the manifestations of the disability herein. The Board further notes there are no diagnostic codes that specifically contemplate residual limitations of motion (bending, twisting, sitting, crossing legs, lifting) and chronic pain (in the right inguinal area, testicle, side of penis, and inner aspect of the upper thigh) related to a hernia repair. However, this pain resulting in functional loss has been clearly present following the Veteran’s hernia repair. During the September 2015 VA hernias examination, the Veteran reported that: (a) since his second hernia surgery in April 2007, he has had right groin pain and right testicular pain; and (b) he was a retired construction worker. The examiner documented right testicular tenderness and ordered a testicular ultrasound; however, the examiner found that the disability resulted in no functional or occupational impact. In the November 2015 NOD, the Veteran reported pain in his right testicle and right side of his penis since his surgery. A January 2016 Fresno VAMC record documented the Veteran’s report of inguinal pain as well as pain in the right groin, right side of penis, and right side of scrotum (severity level at 6 out of 10, with a range in the last month of between 0 and 8). In March 2016, the Veteran submitted a letter from Michael Angelo Construction, describing how the potential employer had to deny employment to the Veteran as a construction worker due to his inability to lift 50 pounds or more, to bend over, and to have body extension of positions to ensure his own and others’ safety. In the March 2016 VA Form 9, the Veteran contended that his condition is much worse than the 10 percent rating indicates and pointed to the fact that he was denied employment as a construction worker due to his disability. A June 2016 Fresno VAMC record documented the Veteran’s report of persistent right inguinal hernia and inguinal pain (for which he took Neurontin with some improvement) that, at times, is electrical into the scrotum and worsened with prolonged sitting and trunk flexion; he was referred to general surgery. During the January 2017 VA hernias examination, the Veteran reported that: (a) since his 2007 surgery, he was had chronic pain in the right groin, right inguinal area, right testicle, right side of penis, and inner aspect of right upper thigh; (b) he was unable to bend or twist at the waist due to the discomfort of the right inguinal area; (c) he developed gastrointestinal bleeding from using Naproxen for pain relief for the right groin pain; and (d) he treats the pain with a truss and lidocaine 4 percent topical cream. The examiner documented that the Veteran was diagnosed with chronic right inguinodynia and advised to have a nerve block of the right inguinal nerve. The examiner indicated that there is a functional and occupational impact, described as: (a) limitation in bending or twisting at the waist, which limits his ability to work as a handyman; and (b) inability to lift more than 25 pounds. In the March 2017 NOD, the Veteran contended that his hernia causes chronic pain, is inoperable, and is not well supported by the truss at times. In an August 2017 VA Form 9 and attached Correspondence, the Veteran contended that his disability, including daily pain, causes functional impairment that interferes with his quality of life and the ability of the body to function under the ordinary conditions of daily life, causing hardship. During the October 2019 Board hearing, the Veteran reported: taking pain medication for chronic hernia pain; that the pain medicine and truss were not helpful; and that a provider told him that another hernia surgery was not appropriate. In a November 2019 private opinion, Dr. EV documented that: (a) a surgeon’s evaluation stated that inguinodynia is inoperable; (b) chronic pain makes it “impossible” for the Veteran to work a full-time job; and (c) the current inguinodynia is caused by or a result of the prior inguinal surgery in 1963. In a November 2019 Brief, the representative contended that: (a) the Veteran continues to suffer the “painful and tormenting” symptoms of his inguinal hernia; (b) the Veteran has remained at a 10 percent rating, despite the disabling effects of the failed mesh surgery at the Fresno VAMC; (c) the Veteran is unable to obtain any gainful employment due to his disabling condition; and (d) the physical pain and emotional distress has become more pronounced with every passing month. A February 2020 Fresno VAMC record documented that, since the 2007 surgery, the Veteran has had pain in the right testicle and right groin extending down the right leg (constant pain that worsens when sitting or crossing legs). The provider noted that the Veteran was independent with all activities of daily living, but, upon physical examination, assessed a recurrent right inguinal hernia repair with incarcerated preperitoneal fat. The provider indicated that the disability was painful to the Veteran and recommended surgery, which the Veteran declined. In a November 2020 VA Memorandum, the Director of Compensation Service denied an extraschedular rating, finding that no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria impractical. In a January 2021 Brief, the representative contended that the Veteran had provided credible lay testimony supporting his claim for an extraschedular rating, including his descriptions of the increasing aggravation of his hernia condition. Based on the evidence above, the Board finds that the Veteran’s disability is analogous to a moderate level impairment under DC 8520 (which rates paralysis of the sciatic nerve); although the Board also considered DC 8530 (which rates paralysis of the ilio-inguinal nerve), the manifestations are closely contemplated by DC 8520 and it is to the Veteran’s advantage to rate this disability analogous to DC 8520 because higher ratings are available than under DC 8530. 38 C.F.R. § 4.124a, DC’s 8520, 8530. Specifically, the Veteran experiences constant pain that worsens with activity and restricts bending, twisting, sitting, crossing legs, and lifting; these functional impairments are similar to impairment of the sciatic nerve in light of the difficulties moving and sitting due to nerve pain. Under DC 8530, a noncompensable rating is warranted for mild or moderate paralysis of the ilio-inguinal nerve; a 10 percent (maximum schedular) rating is warranted for severe to complete paralysis of the ilio-inguinal nerve. 38 C.F.R. § 4.124a, DC 8530. However, under DC 8520: (a) a 10 percent rating is warranted for mild paralysis of the sciatic nerve; (b) a 20 percent rating is warranted for moderate paralysis of the sciatic nerve; (c) a 40 percent rating is warranted for moderately severe paralysis of the sciatic nerve; (d) a 60 percent rating is warranted for severe paralysis of the sciatic nerve with marked muscular atrophy; and (e) an 80 percent (maximum schedular) rating is warranted for complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The regulation provides that the term “incomplete paralysis” with involvement of the peripheral nerves or peripheral nerve injuries indicate a degree of lost or impaired function substantially less than the type pictures for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration; it also provides that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. As explained above, this disability’s manifestations are closely contemplated by DC 8520 and it is to the Veteran’s advantage to rate this disability analogous to DC 8520 because higher ratings are available than under DC 8530. While the evidence of record does show sensory disturbances and constant pain resulting in functional loss, it did not show muscle atrophy or a loss of reflexes; accordingly, the Board grants a separate extraschedular rating of 20 percent, but no higher, under DC 8520 for residuals of right inguinal hernia status post hernioplasty manifesting as limitations of motion (bending, twisting, sitting, crossing legs, lifting) and chronic pain (in the right inguinal area, testicle, side of penis, and inner aspect of the upper thigh). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.