Citation Nr: 21012370 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-19 320 DATE: March 4, 2021 REMANDED A compensable rating for status post left inguinal herniorrhaphy. A rating in excess of 10 percent for scars associated with status post left inguinal herniorrhaphy. A total disability rating based on unemployability (TDIU) prior to April 8, 2014.   REASONS FOR REMAND The Veteran served on active duty from September 1992 to September 1995. The case is on appeal from a February 2013 rating decision. In August 2014, the Veteran testified before a Veterans Law Judge (VLJ) during a Board video conference hearing, which addressed the issues of an increased rating for status post left inguinal herniorrhaphy and entitlement to a combined rating in excess of 50 percent. In October 2015, the Veteran testified before a different VLJ (the undersigned VLJ) at a video conference hearing with respect to the same two issues, in addition to another issue. The additional issue (entitlement to service connection for diabetes) was addressed in a separate August 2017 Board decision. In January 2017, a Board panel remanded the appeal for additional development. However, as the VLJ who conducted the August 2014 Board hearing is now retired, a panel is no longer necessary. See 38 C.F.R. § 20.604. The Board remanded the case for additional development in August 2018. While the case was in remand status, in a September 2020 rating decision, the RO restored a 20 percent rating for right knee, status post ganglion cyst excision with patellar tendon contracture, effective February 9, 2011 and the Veteran’s combined rating was also restored to 60 percent effective February 9, 2011. As the benefits sought have been granted in full, those issues are no longer on appeal. The September 2020 rating decision also reflects that the RO granted a TDIU from April 8, 2014. Thus, with respect to the TDIU issue, what remains on appeal before the Board is entitlement to a TDIU prior to April 8, 2018. See Harper v. Wilkie, 30 Vet. App. 356, 363 (2018).   1. A compensable rating for status post left inguinal herniorrhaphy. 2. A rating in excess of 10 percent for scars associated with status post left inguinal herniorrhaphy. As detailed in the January 2017 remand, the Board found that another VA examination was warranted to address the Veteran’s contentions pertaining to his hernia residuals, to include consideration of the Veteran’s contentions at the Board hearings that such disability results in pain and limitation of motion, and consideration of any additional records obtained as a result of the remand. See 38 U.S.C.§ 5103A; 38 C.F.R.§ 3.159(c). After the January 2017 remand, the Veteran was apparently scheduled for an August 2017 VA examination, for which he failed to appear. However, while the Veteran was informed of an upcoming examination by a June 2017 letter, there is no notification letter for the actual examination, so it is unclear if he received proper notification for the examination. The Board remanded the claim in August 2018 for another attempt to schedule the Veteran for an examination. After the August 2018 remand, the Veteran was scheduled for another examination in October 2018. However, the examination was cancelled as the contractor responsible for examination reported an inability to contact the Veteran. As the Veteran has subsequently attended examinations concerning other claims, attended other VA medical appointments, and filed a new claim in August 2019 for an increased rating concerning this condition, the Board finds the Veteran should be provided with another opportunity to appear for an examination concerning these claims. Furthermore, the Veteran indicated at the August 2014 Board hearing that he seeks treatment from a private doctor. See hearing transcript at 5. Additionally, in December 2014, the Veteran submitted a form for general release of medical provider information from Lim Orthopedics, Holy Mother of Perpetual Help Hospital, and James Gordon Memorial Hospital, all of which are located in the Philippines. The record shows that, later that month, the medical request for such records was rejected because foreign providers were listed. Thus, because such records did not appear to be associated with the claims file, the Board requested that they should be obtained on remand as they could be pertinent to the appeal. See 38 U.S.C.§ 5103A; 38 C.F.R.§ 3.159(c). After the August 2018 remand, an October 2018 private records request was sent, to which the Veteran did not respond. However, given the instant remand, the Veteran will have another opportunity to respond to the record request. 3. A TDIU prior to April 8, 2014. The Veteran contends that his service-connected right knee and his status post left inguinal herniorrhaphy, including scars prevent him from obtaining and maintaining substantially gainful employment. The Board notes that while the Veteran’s claim for increased rating for his right knee condition and status post left inguinal herniorrhaphy, including scars was on appeal, he submitted a claim for TDIU in October 2014. The Board finds that the Veteran’s TDIU claim is part and parcel of the Veteran’s status post left inguinal herniorrhaphy, including scars increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that while the case was in remand status, a September 2020 rating decision granted a TDIU effective from April 8, 2014. Thus, the TDIU issue is on appeal for the period prior to April 8, 2014 and is inextricably intertwined with the hernia issue discussed above. Also, the Veteran is currently service connected for the following disabilities: limitation of extension of right knee due to status post ganglion cyst excision; limitation of flexion of right knee, status post ganglion cyst excision with contracture, patellar tendon; tinea versicolor; tinnitus; scars, status post left inguinal herniorrhaphy and status post ganglion cyst excision; and status post left inguinal herniorrhaphy. As such, the Board finds a remand is warranted for the claim to obtain a “combined effects” medical commentary that considers the current severity of the Veteran’s service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013) (combined effects opinion not required per se, but may be necessary to sufficiently address a TDIU claim). In light of the remand, updated VA records should be obtained. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records. 2. Obtain any relevant private treatment records, to include the records specifically identified by the Veteran (Lim Orthopedics, Holy Mother of Perpetual Help Hospital, and James Gordon Memorial Hospital). 3. After the above requested records, if any, have been associated with the claims file, schedule the Veteran for a VA examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) to determine the current severity of his hernia residuals, including scars. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. If the Veteran does not report to the examination, include a copy of the notification letter in the claims file. 4. Forward the Veteran’s claims file to an appropriate VA examiner to obtain an opinion commenting on the effects of the combination of the Veteran’s service-connected disabilities on his ability to secure or follow gainful employment. The examiner should comment on the “combined effects” of the Veteran’s service-connected disabilities on his ability to secure or follow gainful occupation. The examiner should review the claims file and take into consideration the Veteran’s level of education, special training, and previous work experience, but not age or any impairment caused by nonservice-connected disabilities. The examiner should provide supporting rationale for such commentary. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.