Citation Nr: 21030361 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-27 558 DATE: May 18, 2021 ORDER An initial 10 percent rating, but no higher, for right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia prior to December 12, 2020 is granted. An initial rating in excess of 10 percent for right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia since December 12, 2020 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire period on appeal the Veteran's right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia was most consistent with severe incomplete paralysis of the ilioinguinal nerve. CONCLUSIONS OF LAW 1. Prior to December 12, 2020, a rating of 10 percent, but no higher, is warranted for right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8530. 2. Since December 12, 2020 the criteria for a rating in excess of 10 percent right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8530. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1998 to November 2002. The Veteran testified before the undersigned Veterans Law Judge in March 2019. A copy of the transcript is of record. This case was previously before the Board in August 2019 and September 2020 when the claim was remanded for additional development. A January 2021 supplemental statement of the case was most recently issued, and the claim is once again before the Board. REFERRED The issue of entitlement to service connection for a sleep disability, claimed as secondary to right ilioinguinal nerve entrapment induced neuropathy associated with inguinal hernia was raised by the record and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial compensable rating prior to December 12, 2020, and a rating in excess of 10 percent since December 12, 2020, for service-connected right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia. The Veteran is currently in receipt of a noncompensable rating for his right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia, prior to December 12, 2020. The Veteran has been awarded a 10 percent rating since December 12, 2020. He contends that he is entitled a higher rating. The Board notes that the Veteran is also in receipt of a separate noncompensable rating for an inguinal hernia and noncompensable rating for a residual scar associated with an inguinal hernia which are not before the Board at this time. After a review of the entire record, the Board finds that a 10 percent rating, but no higher, is warranted for the entire period on appeal for his service-connected right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia. Under DC 8530, a 0 percent rating is warranted for mild or moderate paralysis of the ilio-inguinal nerve. A 10 percent rating is warranted for severe-to-complete paralysis of the ilio-inguinal nerve. 38 C.F.R. § 4.124a, DC 8530. While in service, the Veteran was diagnosed with a right inguinal hernia, for which he underwent repair surgery in October 1998. In June 2012, he sought service connection for damaged nerves associated with a hernia repair. The Veteran initially underwent a VA hernia examination in April 2013. The examiner noted that he had not reviewed the Veteran's claims file. He noted the in-service diagnosis of hernia in 1998. He reported that the Veteran had experienced progressively worse entrapment pain for which he had received repeated injections. The examiner found no hernia and no other pertinent physical findings, conditions, signs, or symptoms related to the diagnosis of hernia. He noted that the Veteran's ability to work was impacted by distracting pain associated with the hernia. The Veteran underwent a VA peripheral nerves examination in June 2013. The examiner reviewed the claims file. He noted the 1998 diagnosis of entrapment neuropathy. The examiner noted the Veteran's report of post-surgical dull aching and occasional severe pain below the repair incision. He described the only symptom attributable to peripheral nerve conditions as post-surgery "superficial pain along a dermatome at region of the hernia repair." He noted that all lower extremity nerves were normal, and that there were no other physical findings, complications, conditions, signs, or symptoms. He diagnosed a "superficial cutaneous nerve entrapment secondary to hernia repair involving the area below the right inguinal hernia repair with no tenderness over area of distribution." The Veteran underwent a second VA peripheral nerves examination in July 2016. The Veteran reported aching and intermittent pain around the area of the hernia surgery scar. However, the examiner did not fully address the Veteran's complaints of interference with standing or other reported symptomatology, and the Board, in the initial August 2019 remand, found the examination to be inadequate. As such, little probative value is accorded to this VA examination. The Veteran underwent a January 2020 VA examination. The examiner noted the reported symptoms of aching and sharp pain in the area around his hernia repair scar. The examiner found that the Veteran experiences pain subsequent to his surgery but was unable to determine which nerve group was implicated or whether the cause was muscular or myofascial pain. The claims file was forwarded to an additional VA examiner in June 2020, who opined that the nerve involved in a hernia repair would be the ilioinguinal, iliohypogastric, or the genital branch of the genitofemoral nerves, but he found insufficient medical evidence that any of those nerves were involved or entrapped in the Veteran's case. In the September 2020 Board remand, it was found that the January and June 2020 VA opinions were inadequate to adjudicate the Veteran's claims. As such, little probative value is accorded to these examinations. An October 2020 VA medical opinion was provided. The examiner noted his findings but stated that he is a physician in the field of physical medicine and rehabilitation and believed that a general surgeon who does hernia repair may be able to give a more definitive diagnosis based on their training and expertise with this condition. A subsequent December 2020 examination and opinion were obtained. The VA examiner diagnosed a right ilioinguinal nerve entrapment induced neuropathy, with a diagnosis date of 1999. The examiner noted the Veteran's in-service experience and noted that a member of such elite troops will do anything to avoid going on sick call, and specifically avoid complaining of pain. The examiner stated that the most common hernia repair nerve injury is to the ilioinguinal nerve and that this is what had happened in the Veteran's case. He noted that service treatment records documented a diagnosis of right inguinal hernia which was repaired, and the recovery was uneventful for two months with only normal post-operative pain with some surgery induced peri-incision numbness. The examiner noted that the Veteran's treatment records later began to exhibit issues with his recovery. The examiner then considered the prior VA examinations of record. The examiner noted that the Veteran's chronic right groin pain has been stable for the last 30 years. He noted that on a daily basis he has intermittent dull moderate chronic right groin pain predictably brought on by prolonged standing in one spot or sitting in one chair. The examiner noted that the Veteran has learned to live with and manage his daytime chronic right groin pain, but he cannot mange chronic right groin pain induced sleep disturbances. The examiner noted, however, that he was not qualified to evaluate a sleep disorder. The Board has inferred a claim for a sleep disorder and referred this claim to the Agency of Original Jurisdiction as noted above. The examiner noted that his chronic right groin pain interfered with his job functions, so in 2016 the Veteran shifted to self-employment. The VA examiner diagnosed the Veteran with severe incomplete paralysis of the right ilioinguinal nerve. Of significance is that the VA examiner, an expert in the field of inguinal hernias, their repairs, and complications, found the Veteran's condition was essentially stable for the past decades. As such, the Board finds that the evidence of record, when viewed in the light most favorable to the Veteran, reflects that a 10 percent rating for severe incomplete paralysis of the ilioinguinal nerve is warranted for the entire period on appeal, not just beginning on the date of the December 2020 VA examination. As the Veteran is now in receipt of the highest schedular rating for his right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia, he can only receive a rating higher than 10 percent on an extraschedular basis. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b) requires a three-step inquiry. The Veteran raised the issue of entitlement to an extraschedular rating in his December 2014 notice of disagreement. Under Thun v. Peake, 22 Vet, App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Board finds the symptoms associated with the Veteran's right ilioinguinal nerve entrapment induced neuropathy associated with an inguinal hernia have not been shown to cause any impairment that is not already contemplated by the Ratings Schedule. The record as a whole provides evidence of neurological pain. This aspect is explicitly set forth in the Rating Schedule, such that it is already contemplated by the rating assigned. See, e.g., Doucette v. Shulkin, 28 Vet. App. 366 (2017). Thus, the Board finds referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds that a rating of 10 percent is warranted for the entire period on appeal. However, the preponderance of the evidence is against an initial rating in excess of 10 percent. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, an increased rating in excess of that granted herein is denied. REASONS FOR REMAND 1. TDIU is remanded. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. The Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record (see June 2014 dated statement) and is properly before the Board by virtue of the Veteran's increased rating claims pursuant to Rice. Veterans Claims Assistance Act of 2000 (VCAA) notice should be provided to the Veteran. The record is unclear as to the employment status of the Veteran. Further development is necessary prior to adjudication of this claim and it is therefore remanded. The matters are REMANDED for the following action: Provide the Veteran with notice in compliance with the VCAA that notifies him of what evidence he must show to support a claim for a TDIU. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.