Citation Nr: 21010168 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-23 731 DATE: February 24, 2021 REMANDED Entitlement to an increased rating greater than 30 percent for residuals of a right inguinal herniorrhaphy is remanded. Entitlement to a total disability rating for compensation based upon unemployability due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1979 to May 1996. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2019. A transcript of that hearing is associated with the claims file. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2019 when the matter was remanded to obtain emergency room records that were not previously associated with the claims file. Additionally, the Board found that the Veteran’s claim for entitlement to a TDIU was inextricably intertwined with his claim for an increased rating. The case has been returned to the Board for appellate consideration. Unfortunately, the Board finds that another remand is necessary for proper adjudication of this claim. 1. Entitlement to an increased rating greater than 30 percent for residuals of a right inguinal herniorrhaphy is remanded. The Board remanded this claim in order to associate the Veteran’s emergency room records with his file and complete any other development that may be necessary. Following the Board’s remand, the Veteran was afforded a VA examination in October 2020. The VA examiner found the Veteran did not have a right inguinal hernia. Because of this finding, the VA examiner did not conduct an examination for the inguinal hernia. The lack of a diagnosis, however, conflicts with the Veteran’s medical records indicating he was diagnosed with an inguinal hernia in 1988, a VA examination for a right inguinal hernia in May 2017, and medical records pertaining to the inguinal hernia through 2020. See Capri received February 2020. Furthermore, the Veteran testified that he experiences significant pain and periods of flare-ups causing abdominal cramps. He also testified that use of a truss does not provide support for his hernia; however, the VA examiner for his May 2017 examination noted that the hernia can be well supported by a truss or belt. The 2020 VA examiner does not address the Veteran’s lay statements regarding the severity of his pain, flare-ups, abdominal cramps or ability to support the hernia. Based on the foregoing, the Board finds a remand necessary to obtain a clarifying opinion of the conflicting evidence of record, or if necessary, a VA examination regarding the presence of and current severity of the Veteran’s right inguinal hernia. 2. Entitlement to a TDIU is remanded. In its June 2019 decision, the Board remanded the Veteran’s claim for entitlement to a TDIU because it was inextricably intertwined with the inguinal hernia claim which was remanded. Although a supplemental statement of the case was issued in October 2020, the RO found that the Veteran’s service-connected disabilities are evaluated as 100 percent disabling as of October 2018, rendering the issue of entitlement to a TDIU moot. However, the RO failed to address TDIU prior to October 2018 as the Veteran testified that he has not been able to work since June 2017. The Board notes certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. The Board notes the Veteran met the schedular rating criteria prior to his final date of employment in June 2017. Based on the Veteran’s disability ratings at the time of the claim, adjudication of the issue of entitlement to an increased rating for a right inguinal hernia may impact adjudication of the issue of entitlement to a TDIU. Consequently, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the claim for entitlement to a TDIU must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a clarifying opinion and if necessary, an examination to determine the current severity of his right inguinal hernia. The examiner shall consider the following: (a.) The Veteran’s testimony regarding the severity of his pain, operability, size of the hernia, and ability to use a truss or belt for support (b.) Medical records indicating the presence of an inguinal hernia 2. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must readjudicate the issue of entitlement to an increased rating for residuals of a right inguinal herniorrhaphy and adjudicate the issue of entitlement to a TDIU prior to October 2018. If any benefit sought remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Townsend, 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.