Citation Nr: 21011959 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-00 164A DATE: March 3, 2021 ORDER A 10 percent rating, but not higher, for a postoperative recurrent inguinal hernia is granted. An additional 10 percent rating for bilateral hernia involvement is granted. A 10 percent rating for painful residual hernia scars is granted. REMANDED The issues of entitlement to a rating higher than 10 percent for residual hernia scarring and a total disability rating based on individual unemployability (TDIU) are remanded. FINDINGS OF FACT 1. The Veteran was found to have a right inguinal hernia in service while being treated for his service-connected left inguinal hernia. 2. The Veteran’s service-connected hernia disability is manifested by bilateral involvement, a postoperative recurrent hernia, and scars that are at least intermittently painful. CONCLUSIONS OF LAW 1. The criteria for a 10 percent, but not higher, for a postoperative recurrent inguinal hernia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7338. 2. The criteria for an additional 10 percent rating for a hernia disability with bilateral involvement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, DC 7338, Note. 3. The criteria for a 10 percent rating for residual painful hernia scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2016, the Board remanded this appeal so that the Veteran could be afforded a Board hearing. In January 2017, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is of record. The Board then remanded the appeal again in June 2017 and November 2019. 1. Increased Rating for Inguinal Hernia The Veteran contends that a compensable rating is warranted for his service-connected left inguinal hernia because he continues to have residual pain over the area where he had surgery while walking, and because there is bilateral involvement. As is relevant here, in order to warrant a higher 10 percent rating, the evidence must show a postoperative and recurrent inguinal hernia that is readily reducible and well supported by a truss or belt. 38 C.F.R. § 4.114, DC 7338. An additional 10 percent rating is also assignable where there is bilateral involvement and the second hernia is compensable. 38 C.F.R. § 4.114, DC 7338, Note. Initially, the Board finds that there is bilateral involvement. The Veteran has reported that, at the time he was found to have a left inguinal hernia in service in 1971, he was also told that he had a right hernia, but that nothing was done about the right hernia at that time. See March 2006 VA Examination Report. He further reported that he privately underwent surgery for the right hernia in 1974, just two years after service. Id. Notably, the Veteran is competent to report a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Furthermore, the credibility of the Veteran’s report is supported by service treatment records (STRs) showing right inguinal findings in January 1972 and April 1972, while recovering from a left inguinal hernioplasty. It is also bolstered by VA treatment records as early as 2000 documenting the Veteran’s reports of a history of bilateral hernia in service or in 1971. See, e.g., July 2000, November 2000, and January 2001 VA Treatment Notes. Given the foregoing, after resolving doubt in the Veteran’s favor, the Board finds bilateral involvement such that an additional 10 percent rating is assignable. § 38 C.F.R. § 4.114, DC 7338, Note. Next, the Board finds that a higher 10 percent rating is also warranted for a postoperative recurrent inguinal hernia. In this regard, in service, the Veteran’s left inguinal hernia was found to be recurrent, reducible, and required surgery. See March 1971, October 1971, and November 1971 STRs. Alternatively, the right hernia found in service and for which the Veteran underwent surgery in 1974 reoccurred in 2016. Although the Veteran has not been shown to require a truss of belt, the Board finds that the Veteran’s hernia disability picture is more nearly approximated by the criteria for a 10 percent rating in this instance, as the noncompensable criteria contemplate essentially asymptomatic hernias that do not require surgery. As the Veteran’s hernia is symptomatic, the Board finds that a 10 percent rating is more appropriate in this instance. However, the Board also finds that at no time are higher or separate ratings warranted than those discussed above. The evidence does not show an inguinal hernia that has been unoperated irremediable, has not been readily reducible, or that has even required a truss or belt for support, let alone been not well supported by a truss or belt. See generally, STRs, VA Treatment Notes; see also April 2006 and February 2020 VA Examination Reports. As such, a higher 30 percent rating is not warranted at any time for the Veteran’s bilateral hernia disability. As a final matter, the Board notes that, during the course of the increased rating appeal, the Veteran was separately service connected for scarring associated with his left inguinal surgery and assigned a noncompensable rating. However, given the Board’s finding of bilateral involvement, the February 2020 VA examiner’s notation of a painful right-sided scar, and the Veteran’s report during a March 2006 VA examination of burning over the left-sided scar when walking, the Board finds that a 10 percent rating is warranted for two scars that are painful or unstable. 38 C.F.R. § 4.118, DC 7804. The issue of entitlement to an even higher rating for residual scars is addressed in the Remand portion below. REASONS FOR REMAND 2. The issues of entitlement to an increased rating for residual hernia scars and a TDIU are remanded. During a February 2020 VA examination, a VA examiner indicated that the Veteran’s right hernia scar limited external rotation and flexion of the right hip and caused functional impairment, to include an inability to lift heavy objects or flex the right hip completely. A separate February 2020 VA hip examination noted the right inguinal hernia scar to be “tender with underlying soft tissue damage with restriction on exam of right hip ROM.” Physical examination revealed some limitations in right hip flexion, abduction, external rotation, and internal rotation. However, the hip examiner noted the Veteran’s report that he did not notice restricted range of motion in performing activities of daily living, and the examiner found no functional loss. Given the seemingly conflicting findings, the Board finds that an examination is necessary to determine the severity and functional impairment of the right hip caused by the right inguinal hernia scar. Additionally, as the outcome of the increased rating for residual hernia scarring may affect the outcome of his claim of entitlement to a TDIU, a final decision on the TDIU claim would, at this point, be premature and also requires remand. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature and severity of the Veteran’s residual inguinal hernia scarring, to include the severity of any right hip disability secondary to that scarring. The claims file must be reviewed in conjunction with the examination. All tests deemed necessary should be conducted and the results reported. All objective and subjective symptoms should be described in detail. To the extent possible, the examiner must identify any symptoms (frequency and severity) and functional impairments due to residual hernia scarring, to include any pain, sensory issues, motor issues, and any impairment of the right hip. The examiner must also discuss the effect of the residual scars and any secondary hip impairment on the Veteran’s occupational functioning and activities of daily living. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.