Case A26040807

DAVID A. BRENNINGMEYER · 2026 · Case ID: A26040807

MIXED

Summary

The veteran, who served in the U.S. Army from December 2003 to April 2005, including service in Kuwait and Iraq, appeals the denial of an earlier effective date for a ventral hernia, an extension of a temporary total rating for PTSD, a higher rating for PTSD, and a higher rating for erectile dysfunction. The Board granted service connection for a right knee laceration at 10 percent and for erectile dysfunction at 20 percent, both for the entire period on appeal. The Board denied the appeal for an earlier effective date for the ventral hernia, finding the claim was filed too late. The Board also denied an extension of the temporary total rating for PTSD, as hospitalization did not extend beyond December 31, 2019. For PTSD, the Board denied a rating in excess of 70 percent, finding the evidence did not support total occupational and social impairment, despite some favorable lay testimony. The Board denied a rating in excess of 20 percent for the ventral hernia, finding the evidence against a higher rating. The issue of entitlement to TDIU was remanded due to a pre-decisional duty to assist error, as the AOJ failed to ask the veteran to complete a VA Form 21-8940 when the claim was reasonably raised.

Rationale

Claim filed more than one year after separation from service.; No intent to file received within the one-year period.; No legal basis for earlier effective date.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

200609-92178

Full Decision Text

Citation Nr: A26040807
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 200609-92178
DATE: April 30, 2026

ORDER

An effective date earlier than December 10, 2019, for the award of service connection for a ventral hernia is denied.

An extension beyond December 31, 2019, of a temporary total rating (TTR) based on a period of hospitalization for posttraumatic stress disorder (PTSD) is denied.

A rating in excess of 70 percent for PTSD during the period on appeal from January 1, 2020, and prior to November 6, 2025, is denied.

A 10 percent rating is granted for right knee laceration for the entire period on appeal, subject to the law and regulations governing the award of monetary benefits.

A 20 percent rating is granted for erectile dysfunction for the entire period on appeal, subject to the law and regulations governing the award of monetary benefits.

A rating in excess of 20 percent for a ventral hernia is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran first filed a claim for service connection for a hernia on December 10, 2019.

2. The Veteran was hospitalized for treatment of service-connected PTSD in October and December 2019; his period of hospitalization did not extend beyond December 31, 2019.

3. The weight of the evidence available for review is persuasively against a finding that the Veteran's PTSD was causative of total occupational and social impairment during the period on appeal from January 1, 2020.

4. It is at least as likely as not that the Veteran's service-connected right knee laceration was at least intermittently tender and painful throughout the period on appeal; he had a single scar from the laceration, which is not shown to have affected an area, or areas, of 144 square inches (929 square centimeters) or more, to have been unstable or deep, or to have been causative of other disabling effects.

5. The available evidence reflects the Veteran had loss of erectile power as a result of his service-connected erectile dysfunction throughout the period on appeal.

6. The weight of the evidence available for review is persuasively against a finding that the Veteran's ventral hernia was large and not well supported by a belt under ordinary conditions at any time during the period on appeal.

CONCLUSIONS OF LAW

1. The criteria for the assignment of an effective date earlier than December 10, 2019, for the award of service connection for a ventral hernia have not been met. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400.

2. The criteria for an extension beyond December 31, 2019, of a TTR based on a period of hospitalization for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.29.

3. The criteria for a rating in excess of 70 percent for PTSD from January 1, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411.

4. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating for right knee laceration have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804.

5. The criteria for a 20 percent rating for erectile dysfunction have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.115b, Diagnostic Code 7552.

6. The criteria for a rating in excess of 20 percent for a ventral hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2,
Diagnostic Code 7804.

6. The criteria for a rating in excess of 20 percent for a ventral hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.114, Diagnostic Code 7339.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from December 2003 to April 2005, to include service in Kuwait and Iraq. He also had service in the Army National Guard, to include a period of active duty for training from September 1986 to January 1987. His decorations include the Global War on Terrorism Expeditionary Medal.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2020 and April 2020 by a Department of Veterans Affairs (VA) Regional Office (RO). In the February 2020 decision, the RO, in pertinent part, granted service connection and an initial 20 percent rating for a ventral hernia, effective December 10, 2019; granted a TTR for PTSD from October 22, 2019, to December 31, 2019, pursuant to 38 C.F.R. § 4.29; and continued a prior 0 (zero) percent (noncompensable) rating for a right knee laceration. In the April 2020 decision, the RO, in relevant part, granted service connection and an initial 0 percent rating for erectile dysfunction, effective December 10, 2019. The Veteran timely appealed to the Board by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in June 2020, requesting the hearing review option. See June 2020 VA Form 10182; 38 C.F.R. §§ 20.201, 20.202(b)(2).

In May 2024, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Under the hearing review option, the Board may only consider the evidence of record at the time of issuance of the respective agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decisions on appeal and before the hearing was held, or (2) evidence submitted more than 90 days after the hearing was held. 38 C.F.R. § 20.302.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the Veteran's claims. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes that the issue of the Veteran's entitlement to a TDIU was not adjudicated in either of the 2020 rating decisions on appeal. However, the Board finds that the issue is properly part and parcel of the present appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board has jurisdiction to consider it.

For the reasons set forth below, the Board is remanding the TDIU issue to the AOJ for correction of a pre-decisional duty to assist error. The AOJ will consider any additional evidence that has been submitted when the claim is readjudicated. 38 C.F.R. § 3.103(c)(2)(ii).

the Veteran's entitlement to a TDIU was not adjudicated in either of the 2020 rating decisions on appeal. However, the Board finds that the issue is properly part and parcel of the present appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board has jurisdiction to consider it.

Effective Dates

1. Entitlement to an effective date earlier than December 10, 2019, for the award of service connection for a ventral hernia

Generally, the effective date of an award of service connection is the day following separation from active duty, or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b).

Prior to March 24, 2015, VA recognized formal and informal claims. A formal claim was one that had been filed on a form prescribed by the Secretary. 38 C.F.R. § 3.151 (2014). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA could be considered an informal claim. Upon receipt of an informal claim, if a formal claim had not been filed, an application form was to be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, the formal claim was considered to have been filed as of the date of receipt of the informal claim. When a claim had been filed which met the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening was accepted as a claim. 38 C.F.R. § 3.155 (2014).

The term "application" was not previously defined in the statute. However, in the regulations, "claim" and "application" were considered equivalent and were defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2014); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999).

Effective March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 79 Fed. Reg. 57660 (Sept. 25, 2014). A veteran, or other eligible persons listed in 38 C.F.R. § 3.155(a), who indicates a desire to file for benefits by a communication or action that does not meet the standards of a complete claim is considered to be requesting an application form for benefits under 38 C.F.R. § 3.150(a). 38 C.F.R. § 3.155(a). Upon receipt of such a communication or action, VA shall notify the claimant of the information necessary to complete the application or form prescribed by the Secretary

A claimant may also indicate a desire to file a claim for benefits by submitting an intent to file a claim. If VA receives a complete application form prescribed by the Secretary within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b).

In this case, review of the record reveals that the Veteran first filed a claim for service connection for a hernia on December 10, 2019. That claim was received well more than a year after the Veteran's separation from service, and no other claim for service connection for a hernia, whether formal or informal, was received prior to December 10, 2019. Nor did the Veteran file an intent to file a claim during the one-year period prior to December 10, 2019.

In light of the foregoing, the Board must find that there is no legal basis for the assignment of an effective date earlier than December 10, 2019, for the award of service connection for a ventral hernia. The appeal of this issue is denied.

Veteran first filed a claim for service connection for a hernia on December 10, 2019. That claim was received well more than a year after the Veteran's separation from service, and no other claim for service connection for a hernia, whether formal or informal, was received prior to December 10, 2019. Nor did the Veteran file an intent to file a claim during the one-year period prior to December 10, 2019.

Higher Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

The law mandates resolving reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

In every instance where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

2. Entitlement to an extension beyond December 31, 2019, of a TTR based on a period of hospitalization for PTSD

A temporary total (100 percent) disability rating may be assigned under 38 C.F.R. § 4.29. Under that regulation, such a rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or other approved hospital for more than 21 days, or hospital observation at VA expense for a service-connected disability for more than 21 days.

In this case, the available evidence reflects that the Veteran was admitted to a hospital for treatment of his service-connected PTSD in October 2019, and that he was discharged from the hospital in December 2019. His period of hospitalization did not extend beyond December 31, 2019.

Significantly, the Veteran has not contended that his period of hospitalization continued beyond December 31, 2019. Rather, he offered testimony at the May 2024 Board hearing as to the severity of his PTSD after that date, and argued, in essence, that he was entitled to a higher (100 percent) schedular rating from that date. That assertion is not germane to the TTR awarded under 38 C.F.R. § 4.29, but rather goes to his claim for a rating in excess of 70 percent for PTSD from January 1, 2020, which is addressed separately, below.

Because the evidence shows that the Veteran was not hospitalized for treatment of his service-connected disability after December 31, 2019, there is no legal basis for the extension of the TTR beyond that date. The appeal of this issue is denied.

3. Entitlement to a rating in excess of 70 percent for PTSD from January 1, 2020

As an initial matter, the Board notes that a January 2026 rating decision increased the Veteran's rating for PTSD to 100 percent, effective November 6, 2025. The issue on appeal at present is whether he is entitled to a rating in excess of 70 percent during the period on appeal from January 1, 2020, and prior to November 6, 2025.

PTSD is evaluated under the General Rating Formula for Mental Disorders, which is used to rate psychiatric disabilities other than eating disorders, pursuant to 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.

A 100 percent rating is warranted where there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.

When evaluating a mental disorder, the rating agency is to consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. In addition, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b).

The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptomatology contemplated for each rating. Use of such terminology permits consideration of the symptoms listed, as well as other symptoms, and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).

At the outset, the Board notes that the Veteran generally exhibited symptomatology associated with a 70 percent or lower evaluation during the period here at issue. For example, a January 2020 VA examination report noted symptoms of anxiety, depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting).

The Board acknowledges that the January 2020 VA examiner also found that the Veteran's PTSD had resulted in an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). However, when asked what best summarized the Veteran's level of occupational and social impairment due to all mental health diagnoses, the examiner indicated that the Veteran suffered occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner's description of the Veteran's occupational and social impairment, while not binding on the Board, is consistent with the findings on examination and the medical treatment records.

In pertinent part, the January 2020 VA examiner noted the Veteran's recent participation in a PTSD residential program, that he was currently active in the Aftercare Group from that program, and that he was also getting involved with a recreation therapy group. It was further noted that he was becoming more involved in his church. Although he lived alone, he was visited daily by his sisters. These findings weigh heavily against a finding of total social impairment.

The Board acknowledges that the Veteran testified as to the occupational impairment associated with his PTSD at the May 2024 hearing. However, he also discussed the impairment occasioned by other disabilities in combination. Further, he indicated that his sister continued to check in on
the medical treatment records.

In light of the foregoing, it is the Board's conclusion that the weight of the available evidence is against a finding that the Veteran's PTSD was causative of total occupational and social impairment during the period on appeal. Simply put, in the absence of any evidence of total social impairment, the Board cannot find that total occupational and social impairment was shown.

As the weight of the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The appeal of this issue is denied.

4. Entitlement to a compensable rating for a right knee laceration

Scars are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.

As an initial matter, the Board notes that the Veteran testified at the May 2024 Board hearing that the laceration scar of his right knee was tender and painful at times, and that he had such symptomatology at the time of the February 2020 decision on appeal. The Board acknowledges that a January 2020 VA examiner did not find the scar to be tender or painful. Nevertheless, the Veteran is competent, as a layperson, to describe such symptomatology. Further, the Board finds his testimony on the matter to be credible.

Scars that are painful or unstable are rated under Diagnostic Code 7804. Under that diagnostic code, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings of 20 and 30 percent are warranted if there are three or four, or five or more, such scars, respectively. If one or more scars are both unstable and painful, a 10 percent evaluation is added to the evaluation that is based on the total number of unstable or painful scars. Id. An "unstable" scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1.

Here, the record, including the report of a January 2020 VA examination, reflects that the Veteran's right knee laceration involves only one scar. Moreover, the examiner found that the Veteran did not have frequent loss of covering of the skin over the scar. Therefore, a compensable rating of no more than 10 percent is warranted under Diagnostic Code 7804.

Scars evaluated under Diagnostic Code 7804 may also be evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805, when applicable. Id. Here, however, the Board must find that a separate or still-higher rating is not warranted under any of those other diagnostic codes.

Diagnostic Code 7800 pertains only to scars that result in disfigurement of the head, face, or neck. As the scarring here at issue is not of the head, face, or neck, that diagnostic code is inapplicable.

Diagnostic Code 7801 applies to scars other than those of the head, face, or neck. However, it applies only to scars that are associated with underlying soft tissue damage. Here, the January 2020 VA examination report indicates that there was no underlying soft tissue damage associated with the scar. As such, Diagnostic Code 7801 is also inapplicable.

Superficial scars other than those of the head, face, or neck that are not associated with underlying soft tissue damage are evaluated under Diagnostic Code 7802. However, that diagnostic code provides for a rating of no more than 10 percent only when the scar affects an area or areas of 144 square inches (929 square centimeters) or more. None of the evidence shows that the laceration scar of the Veteran's right knee affected an area of that size during the period here at issue.

Finally, any disabling effects of scars that are not considered in a rating provided under Diagnostic Codes
that there was no underlying soft tissue damage associated with the scar. As such, Diagnostic Code 7801 is also inapplicable.

Finally, any disabling effects of scars that are not considered in a rating provided under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code, to include, where applicable, diagnostic codes pertaining to limitation of function. 38 C.F.R. § 4.118, Diagnostic Code 7805. Here, the January 2020 VA examiner made a specific finding that the scar in question did not result in limitation of function, to include limitation of motion, and that there were no other pertinent physical findings, complications, conditions, signs, and/or symptoms associated with the scar.

In light of the foregoing, the Board finds that the evidence supports the assignment of a 10 percent rating for the Veteran's right knee laceration scar for the entire period on appeal pursuant to Diagnostic Code 7804, but that the evidence is otherwise persuasively against the assignment of a separate or still-higher rating for the scar. To that limited extent, the appeal of this issue is granted.

5. Entitlement to a compensable rating for erectile dysfunction

Prior to a regulatory revision that took effect on November 14, 2021, there was no diagnostic code specific to erectile dysfunction. Under applicable law, an unlisted condition could be rated under a diagnostic code for a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, were closely analogous. 38 C.F.R. § 4.20.

Pursuant to the former version of Diagnostic Code 7522, a 20 percent rating was warranted for deformity of the penis with loss of erectile power. In Williams v. Wilkie, 30 Vet. App. 134 (2018), the U.S. Court of Appeals for Veterans Claims (Court) held that such deformity could include either an internal or external distortion of the penis. No other evaluation was provided under that version of the diagnostic code.

Effective November 14, 2021, Diagnostic Code 7522 was amended. See Schedule for Rating Disabilities; The Genitourinary Diseases and Conditions, 86 Fed. Reg. 54,081 (Sept. 30. 2021). The revised version of the diagnostic code specifically provides that erectile dysfunction warrants a maximum schedular rating of 0 percent, with or without penile deformity.

The revised version of Diagnostic Code 7522 was not in effect at the time of issuance of the April 2020 rating decision on appeal As such, it cannot be applied in this case. In any event, if a law or regulation changes during the pendency of a claim, the version more favorable to the claimant will apply, subject to the effective date of the amendments. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the former version of Diagnostic Code 7522 is more favorable to the Veteran inasmuch as it provides for the possibility of the assignment of a compensable rating, whereas the new version does not.

In this regard, the record available for review does not reflect, and the Veteran does not contend, that he had an external deformity of the penis at any time pertinent to the present appeal. A January 2020 VA examiner found the Veteran's penis and testes to be normal on physical examination (i.e., there was no evidence of an external deformity). However, as noted previously, an internal distortion of the penis can also qualify as a "deformity." In addition, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that once it has been determined that rating by analogy is appropriate, the symptoms of the unlisted condition need not precisely match the criteria for a higher rating for the listed disease in order to warrant a higher rating. Webb v. McDonough, 71 F.4th 1377 (2023).

Here, the record available for review reflects that the Veteran had loss of erectile power as a result of his service-connected erectile dysfunction throughout the period on appeal. See January 2020
evidence of an external deformity). However, as noted previously, an internal distortion of the penis can also qualify as a "deformity." In addition, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that once it has been determined that rating by analogy is appropriate, the symptoms of the unlisted condition need not precisely match the criteria for a higher rating for the listed disease in order to warrant a higher rating. Webb v. McDonough, 71 F.4th 1377 (2023).

Here, the record available for review reflects that the Veteran had loss of erectile power as a result of his service-connected erectile dysfunction throughout the period on appeal. See January 2020 VA examination; May 2024 Board hearing. In light of Webb, the Board finds that the Veteran's disability sufficiently approximated the criteria under the former version of Diagnostic Code 7522 as to warrant the maximum 20 percent rating. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. §§ 4.3, 4.7.

As 20 percent is the maximum rating available under former Diagnostic Code 7522, and no other diagnostic code provides for a higher rating, whether by analogy or otherwise, a rating in excess of 20 percent is not warranted. To that extent, the appeal of this issue is denied.

6. Entitlement to a rating in excess of 20 percent for a ventral hernia

The Veteran's service-connected hernia is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7339. The Board notes that the Schedule for Rating Disabilities was revised, effective May 19, 2024, with respect to the portion of the schedule that addresses the Digestive System, including hernia conditions. 89 Fed. Reg. 19735 (March 20, 2024). However, as the revisions did not become effective until after issuance of the February 2020 rating decision on appeal, the amended criteria are not for application.

Under the criteria in effect prior to May 19, 2024, a 0 percent rating is assigned where postoperative wounds are healed, with no disability, and a belt is not indicated. A 20 percent rating is assigned for a small ventral hernia that is not well-supported by a belt under ordinary conditions, or for a healed ventral hernia or post-operative wounds with weakening of the abdominal wall and an indication for a supporting belt. A 40 percent rating is assigned for a large ventral hernia that is not well-supported by a belt under ordinary conditions, and a maximum 100 percent rating is assigned for massive ventral hernias that are persistent with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable.

In this case, a January 2020 VA examination report reflects that the Veteran's service-connected hernia was manifested by symptoms of abdominal discomfort, abdominal distension, groin discomfort, and tenderness. The Veteran described similar symptoms at the May 2024 hearing. See Hearing Transcript pp. 6-7. However, the examiner also found that the Veteran's hernia was healed following repair, that it could be well-supported by a truss or belt, and that it was not massive with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable.

The Board acknowledges that the Veteran asserted at the May 2024 Board hearing that he had bladder issues associated with his hernia. Id. However, his problems with voiding dysfunction have been recognized as associated with his separately evaluated residuals of prostate cancer.

In light of the foregoing, the Board finds that the weight of the available evidence is persuasively against the assignment of a rating in excess of 20 percent for the Veteran's service-connected ventral hernia. The appeal of this issue is denied.

REASONS FOR REMAND

Entitlement to a TDIU is remanded.

As noted, the Veteran is currently in receipt of a 100 percent schedular rating, effective November 6, 2025. However, he was not in receipt of such a rating during the period on appeal from January 1, 2020.

Entitlement to a TDIU is remanded.

The Board notes that the Veteran did not file a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) during the period on appeal. Nor was entitlement to a TDIU formally adjudicated in the rating decisions on appeal. The Court has held, however, that if, in connection with making a claim for the highest rating possible for a disability, a claimant submits evidence of a medical disability, and evidence of unemployability, the matter of the claimant's entitlement to a TDIU is considered a component of the claim for a higher rating. Rice, supra.

In this case, the Board finds that the issue of the Veteran's entitlement to a TDIU was reasonably raised by the record prior to the adjudication of his claims. Under the circumstances, the AOJ should have asked the Veteran to complete and return a VA Form 21-8940 for purposes of obtaining information with respect to his educational and occupational history. The failure to do so constitutes a pre-decisional duty to assist error that must be corrected.

The Veteran is hereby informed that the Court indicated in Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012), that failure to provide that form, or the equivalent information, can constitute abandonment of a TDIU claim in accordance with 38 C.F.R. § 3.158. In pertinent part, 38 C.F.R. § 3.158 provides that where evidence requested in connection with an initial claim or supplemental claim or for the purpose of determining continued entitlement is not furnished within 1 year after the date of the request, the claim will be considered abandoned. See also Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Wood v. Derwinski, 1 Vet. App. 190, 193, recon. denied, 1 Vet. App. 406 (1991) (per curiam).

This matter is REMANDED for the following action:

Ask the Veteran to complete and return a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), or to provide the equivalent information. If he does not wish to pursue a claim for a TDIU, he should be asked to state that fact in writing.

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board John Kitlas, 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.

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