Citation Nr: A25035146 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 191219-56491 DATE: April 16, 2025 REMANDED Entitlement to an evaluation greater than 10 percent for left sided inguinal hernia is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1981 to January 1986. The rating decision on appeal was issued in August 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on October 25, 2023. Therefore, the Board may only consider the evidence of record at the time of the August 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. However, because the Board is remanding the claim of entitlement to an evaluation greater than 10 percent for left sided inguinal hernia, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). The Veteran's claim for an evaluation greater than 10 percent for a left sided inguinal hernia was denied in a March 2024 Board decision, which was appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2024 Order, the Court granted the parties' July 2024 Joint Motion to Remand (JMR) and remanded the issue of an evaluation greater than 10 percent for left sided inguinal hernia to the Board to correct a duty to assist error and for readjudication by the AOJ. The Board notes that during the pendency of the appeal, a December 2023 AOJ rating decision granted the Veteran a 30 percent rating for his inguinal hernia from August 9, 2023. The Board does not disturb that decision. Entitlement to an evaluation greater 10 percent for a left sided inguinal hernia is remanded. In the July 2024 JMR, the parties agreed that remand was warranted to instruct the AOJ to inform the Veteran of his right to a pre-decisional hearing. The parties agreed that the Board should have remanded the decision on appeal due to a pre-decisional duty to assist error of failing to notify the Veteran of his right to a pre-decisional hearing. The JMR specifically notes: "Remand is required for the Board to remand Appellant's claims to the agency of original jurisdiction pursuant to 38 C.F.R. § 20.802(a) with instructions that the AOJ inform Appellant of his right to a pre-decisional hearing." Accordingly, considering the pre-decisional duty to assist error, and the JMR, remand is warranted to notify the Veteran of his right to a pre-decisional hearing and for the AOJ to readjudicate the claim based on the record before it. The matter is REMANDED for the following action: 1. Send the Veteran and his representative notice of his right to a pre-decisional hearing and allow appropriate time for the Veteran or his representative to submit additional argument in support of his claim. 2. Readjudicate the claim for entitlement to an evaluation greater than 10 percent for left sided inguinal hernia from May 30, 2019, to include on an extraschedular basis, based on the evidence of record. 3. Notify the Veteran and his representative of the resulting rating decision. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Danilowicz, B. 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.