Citation Nr: 21010271 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 05-21 705 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted from May 20, 2003 to March 15, 2020. Entitlement to an extraschedular rating of 70 percent under Diagnostic Code (DC) 9421 for psychiatric symptoms of ventral hernia scar and surgery of mesenteric artery perforation which occurred during right inguinal hernia surgery is granted from May 20, 2003 to March 15, 2020. Special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is granted from May 20, 2003 to March 15, 2020. FINDINGS OF FACT 1. From May 20, 2003 to March 15, 2020, the Veteran was precluded from securing and maintaining substantially gainful employment as a result of his service-connected disabilities. 2. The rating criteria for hernias does not adequately rate the Veteran’s hernia symptoms of addiction to opiates prescribed for the disability, psychiatric symptoms, inability to be athletic and play with his kids, difficulty driving, negative impact on his sex life, incontinence, restrictions on lifting and physical activity inability to work, and acid reflux. 3. The symptoms of inability to be athletic and play with his kids, difficulty driving, negative impact on his sex life, incontinence, and acid reflux are not so severe as to cause other related factors, such as frequent hospitalizations or marked interference with work. The second Thun factor is not met for these symptoms. 4. The restrictions on lifting and physical activity caused marked interference with employment and is compensated by the TDIU granted herein. 5. The symptoms of addiction to opiates prescribed for the disability and psychiatric symptoms caused him to have hospitalizations and other related factors. These symptoms are compensated by a 70 percent disability rating under DC 9421 for somatic symptom disorder associated with status post right inguinal hernia repair, recurrent, scar that was granted effective March 16, 2020. 6. In order to compensate the psychiatric and addiction symptoms prior to March 16, 2020, an extraschedular rating is warranted to extend the 70 percent rating under DC 9421 back to the May 20, 2003, date of claim. 7. From May 20, 2003 to March 15, 2020, the Veteran has a TDIU for ventral hernia; scar; surgical repair of mesenteric artery perforation which occurred during right inguinal hernia surgery and additional service-connected psychiatric disability, independently ratable at 70 percent. CONCLUSIONS OF LAW 1. From May 20, 2003 to March 15, 2020, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.16(b). 2. From May 20, 2003 to March 15, 2020, the criteria for entitlement to an extraschedular 70 percent rating under DC 9421 for psychiatric symptoms of ventral hernia scar and surgery of mesenteric artery perforation which occurred during right inguinal hernia surgery are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.114, 4.130, DCs 7339, 9421. 3. From May 20, 2003 to March 15, 2020, the criteria for SMC are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1992 to April 1994. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated August 2004 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran’s appeal has previously been before the Board. In May 2017, the Board remanded the Veteran’s claims to the agency of original jurisdiction (AOJ) for additional development. In a September 2020 rating decision, the AOJ stated that entitlement to a TDIU is moot because a schedular 100 percent rating was granted for hernia effective March 16, 2020. This is incorrect. As that grant does not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran had a hearing before the undersigned Judge in November 2020. The transcript has been associated with the file. 1. Entitlement to TDIU on an extraschedular basis prior to March 16, 2020 A TDIU may be assigned, where the schedular rating is less than total, when the disabled person 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, this disability shall be ratable at 60 percent or more; or 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). The Veteran first submitted an application for TDIU in April 2004 and listed his hernia as the service-connected disability preventing him from securing or following any substantially gainful occupation. This claim was made in conjunction with a hernia claim that was received on May 20, 2003. Therefore, the appeal period for the TDIU begins on May 20, 2003. During the appeal period, the Veteran had several stages of a combined 100 percent schedular rating because his hernia disability was rated 100 percent disabling: September 30, 2003 to November 30, 2003; February 26, 2007 to April 30, 2007; February 24, 2010 to April 30, 2010. TDIU is not available during these stages because the schedular rating is total. Disregarding the 100 percent disability rating periods, the Veteran had a combined disability rating of 10 percent from May 20, 2003 to September 29, 2003; and 30 percent from December 1, 2003 to February 25, 2007, May 1, 2007 to February 23, 2010, and May 1, 2010 to March 15, 2020. During these stages when the combined rating was less than total, the Veteran did not have a combined disability rating of at least 60 percent. Therefore, the Veteran does not meet the schedular requirements for entitlement to a TDIU during these stages. 38 C.F.R. § 4.16(a). Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may still be assigned on an extraschedular basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The Veteran’s case was referred to the Director of Compensation Services (Director) for extraschedular consideration. In March 2020, the Director determined that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment. Therefore, entitlement to extra-schedular TDIU benefits was not established. However, the Board is not bound by the Director’s findings. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Upon a thorough review, the probative evidence of record indicates that the Veteran has been unable to secure and follow a substantially gainful occupation due to his service-connected disabilities since May 20, 2003. Entitlement to a TDIU on an extraschedular basis is granted effective May 20, 2003 under 38 C.F.R. § 4.16(b). 2. Entitlement to an extraschedular rating for ventral hernia scar and surgery of mesenteric artery perforation which occurred during right inguinal hernia surgery on an extraschedular basis prior to March 16, 2020 The Veteran contends that his hernia symptoms are not adequately contemplated by the rating schedule, and that an extraschedular rating is warranted for the period on appeal. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the Veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the Veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Here, the Board already referred this issue to the Director, resulting in a February 2020 Memorandum opining that the Veteran was not entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) for the ventral hernia on the basis that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. As the Director has made its required initial determination, the Board has jurisdiction to adjudicate the extraschedular ventral hernia issue on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). During the appeal period, the Veteran had a 100 percent schedular rating for his ventral hernia disability from September 30, 2003 to November 30, 2003. An extraschedular rating is not available during this stage because the schedular rating is total. For the remainder of the appeal period, the schedular ratings for the Veteran’s “ventral hernia, scar, surgical repair of mesenteric artery perforation which occurred during right inguinal hernia surgery” disability is assigned a 20 percent from December 1, 2003 to March 15, 2020 under DC 7339. The issue of entitlement to a higher schedular rating is not before the Board at this time. Only the issue of an extraschedular rating is for adjudication. Evidence On VA examination in September 2003, the Veteran noted he had pain at the site of the hernia. He did not wear a truss or a belt and the hernia was not irremediable or inoperable. In conclusion, he had a slight inguinal hernia with a very small impulse on coughing, which was totally reducible. He was planned for surgery that week. On VA examination in March 2004, it was noted that the Veteran had a hernia in the right inguinal area, which was going to be repaired by laparoscopic surgery. During the procedure, there was perforation of the mesenteric artery with secondary complications of perforation for the mesenteric artery. The Veteran developed a naval hernia and he had a ventral hernia with swelling of the right side of the abdomen. He also had a right inguinal hernia not being repaired and developed a ventral hernia secondary to the surgery. In a July 2003 medical treatment record, the Veteran’s hernia was not protrudent, but was painful upon examination. In another July 2003 medical treatment record, the Veteran had pain in his abdomen rated as a 10 out of 10. The pain continued for hours and was intermittent. Movement made the pain worse. The pain was described as soreness, aching, sharp, squeezing, stabbing, tightness, and throbbing. An October 2003 medical treatment record noted a pain level of four out of 10 in his abdomen. The pain was described as intermittent and was aching in nature. Movement and coughing made the pain worse. In a February 2004 medical treatment record, the Veteran had pain which was described as an eight out of 10. It was exacerbated by lifting and straining. A March 2004 scan of the abdomen yielded results of a normal abdominal CT scan. In an August 2004 Notice of Disagreement (NOD), the Veteran wrote, I suffer from sharp pain in my abdomen, I can’t fit [into] any of my clothes I use[d] to wear because when I attempt to button them up it’s sharp pain in my lower abdomen. I can’t do any bending or heavy lifting and worst of all I haven’t been able to work because of these conditions. I also developed a ventral hernia, with swelling on the right side of my abdomen during the repair of the perforated mesenteric artery so my stomach is oddly shaped. During an August 2004 VA examination, the Veteran’s hernia did not require a belt. An umbilical hernia was noted. He had had surgery of the recurrent hernia in 2003. Then, in an attempt to repair, they cut the mesenteric artery in the stomach and did a laparotomy. The Veteran developed a ventral hernia. The Veteran had a right inguinal hernia and an umbilical hernia. He did not use a truss or a belt. The hernia size was about six centimeters by six centimeters and was a rounded shape. The hernia was reducible. He was unable to bend or do any heavy lifting. In a May 2006 medical treatment record, the Veteran had ongoing abdominal pain. He described the pain as “throbbing,” which came on at various times during the day. The pain occurred eight to nine times a day and lasted five to six minutes. He reported increased pain trying to close his pants and he had occasional transient nausea. He stated that his pain had been the same since his surgery, and stated that it was worse the previous day after lifting a bag of dog food. The physician noted a slightly protruding area around the umbilicus extending across the abdomen. The incision was recorded as healed. He had tenderness close to the reduction of the protruding area. In another May 2006 medical treatment record, the Veteran stated the present pain started the day before. He reported pain in the middle naval area. He reported the pain had always been there. It came and went on a daily basis. He rated his pain as a 10 out of 10 and described it as sharp and throbbing. In a December 2006 medical treatment record, the Veteran reported that he was bothered by the pain in the affected region. He had been using over the counter pain medications but they had not helped much. He also reported increased pain. He was unable to lift even small amounts of weight. In a February 2007 medical treatment record, the Veteran reported pain was a seven out of 10 in his right groin area. At its worst, it was a 10 out of 10, and at its best it was a seven out of 10. The pain was described as sharp. He had been in constant pain that had lasted for longer than a year. He used medication to relieve the pain. Lifting or bending caused or increased the pain. In a March 2007 medical treatment record, the Veteran was healing well from another hernia surgery. There was no change in acute pain which was rated as a five out of 10. He had pain specifically in his groin area. On VA examination in August 2007, the Veteran reported being diagnosed with (recurrent) status post right inguinal hernia repair. The recurrent inguinal hernia occurred in 2004. He had an operation in October 2004 to repair the recurrent hernia, but a complication occurred: the mesenteric artery was perforated. The mesenteric artery was repaired. He had surgery to repair the right inguinal hernia in February 2007. The location of the condition was the right groin area and bottom of the stomach. The current symptoms were pain to touch when bending over, lifting, or during intercourse. He had had urgency of urination since February 2007. The Veteran had tenderness in his lower abdomen in the pelvic area and a feeling like something was pulling, which had been present since his surgery in 2004. There was no inguinal hernia noted on examination. There was a ventral hernia present. The hernia measured four centimeters in length and four centimeters in width. It was located in the midline of the abdomen and could not be supported by a truss/belt. There were diastasis recti present and the extent was four centimeters long. Abdominal wall muscles and fascia surrounding the hernia showed weakened muscle tone. The hernia was operable. In a March 2008 medical treatment record, the Veteran had moderate tenderness with palpation in the hernia. In May 2008, it was noted that the Veteran had an umbilical hernia, which was fully reducible. In a December 2008 medical treatment record, the Veteran had a long midline incision with an umbilical hernia at the distal end of the incision. The hernia was reducible. In July 2009, a small incisional hernia was noted. In September 2009, the Veteran was fit with a lumbosacral corset to help control his umbilical hernia. In an October 2009 consultation for his hernia, it was noted that the Veteran did construction work, building houses and had to lift between 100 to 200 pounds. He also lifted weights and may lift up to 300 pounds. The hernia was still only painful when he had to lift heavy objects and the pain was temporary. In December 2009, the Veteran’s pain intensity was recorded as a seven out of 10, which was aggravated by movement, especially bending. In a February 2010 medical treatment record, the Veteran’s pain score was an eight out of 10. His pain was described as tender and throbbing that was constant. VA treatment records reflect that the Veteran underwent repair of the ventral hernia in February 2010. In a May 2010 medical treatment record, the Veteran complained of bilateral flank pain at the port site as well as pain in his old midline incisions. The pain was greatly exacerbated by lifting heavy objects. He reported no bulging at incisions or the old hernia site. The pain caused him significant distress. A July 2010 CT scan of the abdomen showed postsurgical changes of the umbilical hernia repair. There was some subcutaneous stranding noted in the region of the umbilicus. There continued to be protrusion of the mesh and bowel in the region of the umbilicus. An abnormality follow-up was needed. In a March 2010 medical treatment record, the physician noted that the Veteran was not to do heavy lifting greater than 10 pounds for six weeks from original or date of February 24, 2010. He needed to return to work as tolerated in six weeks. In a January 2011 medical treatment record, the Veteran had continuous, sharp pain in the umbilical area. The pain was exacerbated by bending over and relieved somewhat by lying flat. In a May 2012 VA examination, the right inguinal hernia condition was characterized as “stable.” The Veteran stated that wearing a belt was problematic as when the belt pressed onto the scar, it became painful. No inguinal hernia was detected on examination. There was no indication for a supporting belt. No ventral hernia was noted. An October 2012 medical treatment record noted that there were no inguinal or abdominal hernias palpable. In February 2013, the Veteran struggled with urge incontinence due to status post inguinal and abdominal surgeries. In a November 2013 medical treatment record, the Veteran complained of abdominal pain, mainly upon touch, in the umbilical area to the right lower quadrant. He complained of constant discomfort to pain in the abdomen that was worse in the right lower quadrant and also severe constipation. His pain level was an eight out of 10 in his abdominal area. In January 2014, the Veteran reported constant, sharp pain in the bottom of his stomach, which was worse when he bent over and with Valsalva. Nothing made the pain better. He also reported a constant pressure feeling and difficulty holding urine. In July 2014, the Veteran rated his pain as a seven out of 10. In a November 2015 VA examination, no inguinal hernia was detected on examination. There was, however, a large ventral hernia described as a tender bulge of about 12 centimeters to the right of the laparotomy scar, which increased with Valsalva. There was an indication for a supporting belt. No truss or belt had been tried or used. He complained of pain and tenderness which increased with wearing a belt or tight clothing. He complained of pain with straining or lifting. A CT scan of the Veteran’s abdomen in October 2018 showed an umbilical hernia with defect in the abdominal wall measuring approximately 3.1 by 5 centimeters. During his November 2020 hearing, the Veteran testified that he took pain medication for his hernia condition. He then discussed his battle with addiction to pain killers, which affected his life and his family’s lives. He noted that he had been battling addiction for seven years. Additionally, he noted that his hernia affected his ability to be athletic with his kids. He provided, “My son is an athlete. He plays football. I used to coach him in football. I coached him when he was little. But me and him going to the park and him running routes, and me throwing footballs and running, I can’t be involved with him like that. Basketball, the same thing. I used to go play basketball. I was a very athletic person.” See Hearing Transcript dated November 2020. He also noted that the pain affected him when he drove. He testified, “When I drive in pain, I have to, I can’t cross that seatbelt across my stomach.” See Hearing Transcript dated November 2020. He then went on to discuss how his hernia affected his sex life with his wife. He also struggled with incontinence and noted that he had “bad acid reflux” because of the hernia as well. He testified that he had “to sit up at night on four pillows to keep my food from coming back up.” See Hearing Transcript dated November 2020. Diagnostic Code 7339 does not specifically list all the Veteran’s symptoms and does not take into consideration all of the symptoms that he experiences due to his service-connected disability. Analysis DC 7339 provides that for a postoperative ventral hernia, the current 20 percent rating is warranted for a small hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. A higher rating of 40 percent is available for a large hernia that is not well supported by belt under ordinary conditions. A 100 percent rating is available for massive, persistent, severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. In regard to the first Thun element, comparison of the Veteran’s symptoms and associated functional impairment shows that the rating criteria are inadequate to describe his disability picture. The Veteran’s ventral hernia scar and surgery of mesenteric artery perforation which occurred during right inguinal hernia surgery is rated under Diagnostic Code 7339. While that code contemplates hernia-specific elements like the size of the hernia, operability, and whether a support belt is required, it does not address the side effects of the hernia or the medication prescribed for the hernia. The record shows that the Veteran has complaints and findings of addiction to opiates prescribed for the disability, psychiatric symptoms, inability to be athletic and play with his kids, difficulty driving, negative impact on his sex life, incontinence, restrictions on lifting and physical activity rendering him unable to work, and acid reflux all due to his hernia. In regard to the second Thun element, the inability to be athletic and play with his kids, difficulty driving, negative impact on his sex life, incontinence, and acid reflux are not so severe as to cause frequent hospitalizations or marked interference with work. Therefore, these symptoms do not rise to the level of an exceptional disability picture that would warrant an extraschedular rating. However, the symptoms of restrictions on lifting and physical activity caused marked interference with employment. Similarly, the Veteran’s addiction to opiates prescribed for the disability and psychiatric symptoms did cause him to have hospitalizations. As the second Thun element is met for these symptoms, the Board must determine how these symptoms can be compensated. As to the marked interference with work, the Board has compensated the Veteran for this by granting him an extraschedular TDIU for the entirety of the appeal period as discussed above. Addiction to opiates and psychiatric symptoms are contemplated in his 70 percent disability rating under DC 9421 for somatic symptom disorder associated with status post right inguinal hernia repair, recurrent, scar. However, this rating was only granted effective March 16, 2020. Therefore, the psychiatric symptoms are not currently compensated for prior to that date. To remedy this gap in the Veteran’s compensation, the Board awards an extraschedular 70 percent rating under DC 9421 for the entire appeal period. It is difficult to pinpoint the precise date that these symptoms arose; the Board will resolve doubt in the Veteran’s favor and assume that they have been present since May 20, 2003. The Board finds the 70 percent rating under DC 9421 appropriate because his psychiatric symptoms appear to have been fairly consistent over the appeal period, producing occupational and social impairment with deficiencies in most areas. However, they have not produced the total social impairment that would warrant a 100 percent schedular rating, because the Veteran has been able to maintain relationships with his family and reported that his family is supportive. Therefore, the Board concludes that the Veteran’s disability picture, including symptoms and associated functional impairment that the rating criteria are inadequate to describe, are compensated by the grant of an extraschedular TDIU herein, and the grant of an extraschedular 70 percent rating for psychiatric disability associated with the hernia. 3. From May 20, 2003 to March 15, 2020, the criteria for SMC are met Special monthly compensation is payable at a specified rate under 38 U.S.C. § 1114(s) when a veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on the grant of a TDIU on an extraschedular basis, so long as it is assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). As the Board herein grants an extraschedular TDIU for the single disability of ventral hernia; scar; surgical repair of mesenteric artery perforation which occurred during right inguinal hernia surgery, the first criterion is met. In this decision the Board has also granted an independent extraschedular rating of 70 percent for the separate and distinct psychiatric disability, which involves a different bodily system (psychiatric) from the TDIU (digestive). The second criterion is met. Both the TDIU and 70 percent extraschedular rating are granted from May 20, 2003 to March 15, 2020; thus, SMC(s) is granted from May 20, 2003 to March 15, 2020. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.