Citation Nr: 0418238 Decision Date: 07/08/04 Archive Date: 07/21/04 DOCKET NO. 02-06 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a ventral hernia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The claimant served on active duty for training (ACDUTRA) with the Louisiana Army National Guard from April 19, 1973 to October 26,1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 2002 from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for a ventral hernia. This case was previously before the Board in October 2003, and was Remanded to the RO to afford the claimant a previously scheduled hearing before a traveling Veterans Law Judge of the Board. That original hearing was scheduled to be held in June 2003, but the claimant failed to report. The claimant then submitted correspondence explaining the reason for his absence, which was construed as a timely motion to reschedule his hearing, and that motion was granted for good cause shown in October 2003. The claimant failed to appear for that scheduled hearing on April 6, 2004, despite being notified of the date, time and place of that hearing at his address of record. The Board will address the matter on appeal based upon the record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and VA's duty of notification to the claimant of required information and evidence and of its duty to assist him in obtaining all evidence necessary to substantiate his claim have been fully met. 2. The claimant's service medical records are silent for complaint, treatment, findings or diagnosis of a ventral hernia during the claimant's active duty for training. 3. Clinical evidence of a ventral hernia was initially reported many years following service. 4. The probative and competent medical evidence of record establishes that the post service diagnosed ventral hernia has not been linked to service on any basis. CONCLUSION OF LAW A ventral hernia was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(2), (23), (24), 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1(d), 3.6(a), (d), 3.159, 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2000)]. This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (CAVC) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Implementing regulations for the VCAA were subsequently enacted, which were also made effective November 9, 2000. Except for the amendment to 38 CFR § 3.156(a), the second sentence of 38 CFR § 3.159(c), and 38 CFR § 3.159(c)(4)(iii), effective August 29, 2001, governing reopening of previously and finally denied claims, the provisions of this final rule apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date. As the instant appeal does not address a reopened claim, the revised regulations pertaining to reopened claims are inapplicable to this appeal. The intended effect of the implementing regulations was to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to claimants who file a claim for benefits. 66 Fed. Reg. 45,620 (August. 29, 2001). Both the VCAA and the implementing regulations are applicable in the present case, and will be collectively referred to as "the VCAA." To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements: First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b)(1) (2003). Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b)(1) (2003). See 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b)(1) (2003). Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b)(1) (2003). Finally, the RO must request that the claimant of the information provide any evidence in the claimant's possession that pertains to the claim. See 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b)(1) (2003). The record shows that the claimant was informed of the provisions of the VCAA by RO letter of January 2004 which informed him of VA's duty to notify him of the information and evidence necessary to substantiate his application for service connection for the disability claimed. That letter informed him of the evidence needed to establish direct or presumptive service connection for claimed disabilities, and asked that he submit medical evidence showing that he currently has a disease or injury; that he sustained that disease or injury while on active duty; and that he submit medical evidence which links or relates his current disability to his period of active duty. That letter further informed the claimant what part of that evidence the RO would obtain and what evidence he should submit, pursuant to Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (requiring VA to notify the claimant of what evidence he or she was required to provide and what evidence the VA would attempt to obtain). The claimant and his representative were also provided a Statement of the Case on April 11, 2002, which informed him of the issue on appeal, the evidence considered, the adjudicative actions taken, the pertinent law and regulations pertaining to direct and presumptive service connection, the decision reached, and the reasons and bases for that decision. That Statement of the Case also notified the claimant and his representative of VA's duty to assist them by obtaining all evidence in the custody of military authorities or maintained by any other federal, State or local government agency, as well as any medical, employment, or other non-government records which are pertinent or specific to that claim; and which the claimant identified and provided record release authorizations permitting VA to obtain those records. Further, that Statement of the Case informed the claimant and his representative that should efforts to obtain records identified by the claimant prove unsuccessful for any reason which the claimant could remedy, the VA would notify the claimant and advise him that the ultimate responsibility for furnishing such evidence lay with the claimant. The Board finds that all relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and that VA's duty of notification to the claimant and his representative of required information and evidence and of its duty to assist them in obtaining all evidence necessary to substantiate the issue on appeal have been fully met. The RO has obtained the claimant's available service medical and personnel records, as well as all private or VA medical evidence identified by the claimant. The RO has further afforded the claimant a VA medical examination for his claimed abdominal hernia, and has twice scheduled a hearing before the undersigned Veterans Law Judge of the Board of Veterans' Appeals, but the claimant failed to appear for those hearings. Neither the appellant nor his representative have argued a notice or duty to assist violation under the VCAA, and the Board finds that there is no question that the appellant and his representative were fully notified and aware of the type of evidence required to substantiate the claim. In view of the extensive factual development in the case, as demonstrated by the Board's October 2003 remand and the record on appeal, the Board finds that there is no reasonable possibility that further assistance would aid in substantiating this appeal. For those reasons, further development is not necessary for compliance with the provisions of 38 U.S.C.A. §§ 5103 and 5103A (West 2000). It is noted that the United States Court of Appeals for Veterans Claims (CAVC) decision in Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24, 2004) (Pelegrini II) (withdrawing and replacing Pelegrini v. Principi, 17 Vet. App. 412 (2004)) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial AOJ decision was in February 2002, prior to January 2004, when the veteran was initially notified of the VCAA. However, assuming solely for the sake of argument and without conceding the correctness of Pelegrini II that essentially adopted the same rationale as its withdrawn predecessor, the Board finds that any defect with respect to the VCAA notice requirement in this case was harmless error for the reasons specified above. Only after the pertinent rating action was promulgated did the AOJ provide notice to the claimant regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. See the references to the documents issued to the veteran set out above. Because the VCAA notice in this case was not provided to the appellant prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the CAVC in Pelegrini II. The CAVC did leave open the possibility that a notice error of this kind may be non-prejudicial to a claimant. The CAVC in Pelegrini II incorporated essentially the same reasoning from its pervious decision, that is that the failure to provide the notice until after a claimant has already received an initial unfavorable AOJ determination, i.e., a denial of the claim, would largely nullify the purpose of the notice and, as such, prejudice the claimant by forcing him or her to overcome an adverse decision, as well as substantially impair the orderly sequence of claims development and adjudication. On the other hand, the CAVC acknowledged that the Secretary could show that the lack of a pre-AOJ decision notice was not prejudicial to the appellant. In light of the CAVC's adoption of essentially the same principle in Pelegrini II, the Board finds that the CAVC in Pelegrini II has left open the possibility of a notice error being found to be non- prejudicial to a claimant. To find otherwise would require the Board to remand every case for the purpose of having the AOJ provide a pre-initial adjudication notice. The only way the AOJ could provide such a notice, however, would be to vacate all prior adjudications, as well as to nullify the notice of disagreement and substantive appeal that were filed by the appellant to perfect the appeal to the Board. This would be an absurd result, and as such it is not a reasonable construction of section 5103(a). There is no basis for concluding that harmful error occurs simply because a claimant receives VCAA notice after an initial adverse adjudication. Moreover, while strictly following the express holding in Pelegrini would require the entire rating process to be reinitiated when notice was not provided prior to the first agency adjudication, this could not have been the intention of the CAVC, otherwise it would not have taken "due account of the rule of prejudicial error" in reviewing the Board's decision. See 38 U.S.C. § 7261(b)(2); see also Conway v. Principi, 353 F. 3d 1369 (Fed. Cir. 2004) (There is no implicit exemption for the notice requirements contained in 38 U.S.C. § 5103(a) from the general statutory command set forth in section 7261(b)(2) that the Veterans Claims Court shall "take due account of the rule of prejudicial error.") In reviewing AOJ determinations on appeal, the Board is required to review the evidence of record on a de novo basis and without providing any deference to the AOJ's decision. As provided by 38 U.S.C. § 7104(a), all questions in a matter which under 38 U.S.C. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary, and such final decisions are made by the Board. Because the Board makes the final decision on behalf of the Secretary with respect to claims for veterans' benefits, it is entirely appropriate for the Board to consider whether the failure to provide a pre-AOJ initial adjudication constitutes harmless error, especially since an AOJ determination that is "affirmed" by the Board is subsumed by the appellate decision and becomes the single and sole decision of the Secretary in the matter under consideration. See 38 C.F.R. § 20.1104. There simply is no "adverse determination," as discussed by the CAVC in Pelegrini, for the appellant to overcome. Similarly, a claimant is not compelled under 38 U.S.C. § 5108 to proffer new and material evidence simply because an AOJ decision is appealed to the Board. Rather, it is only after a decision of either the AOJ or the Board becomes final that a claimant has to surmount the reopening hurdle. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the appellant was not given prior to the first AOJ adjudication of the claims to reopen, nor the initial claim of service connection for a dental disorder, the notice was provided by the AOJ prior to the transfer and certification of the appellant's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, notwithstanding Pelegrini, to decide the appeal would not be prejudicial error to the claimant. The current decision in Pelegrini noted that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). As the Board has already noted on several occasions, the veteran has already been afforded numerous opportunities to submit additional evidence. It appears to the Board that the claimant has indeed been notified that he should provide or identify any and all evidence relevant to the claim. Factual Background The evidence includes a record of the claimant's service and separation from the Army National Guard Bureau, Army National Guard of Louisiana (NGB Form 22) showing that the claimant enlisted on December 18, 1972, for a term of six (6) years, and that he was discharged on December 13, 1973. That document further shows that the claimant served a period of active duty for training from April 19, 1973 to October 26, 1973, with 47 days time lost; and that he had enlisted in the Oklahoma Army National Guard, 1st Support Company, 279th Infantry, on August 19, 1974. The claimant's DD Form 214 shows that he served on active duty for training (ACDUTRA) with the Louisiana Army National Guard from April 19, 1973 to October 26,1973; and that he was released by general discharge under honorable conditions. That DD Form 214 shows that the claimant lost 47 days under Title 10 U.S. Code § 972 from July 2 through 8, 1973; from August 3 through September 5, 1973; and from September 6 through 11, 1973. Another document issued by the Headquarters, Fifth United States Army, Fort Sam Houston, Texas, shows that the claimant was discharged from the 215th General Supply Company, Tulsa, Oklahoma, effective April 14, 1978. On August 3, 2000, the claimant submitted an Application for VA Compensation or Pension Benefits (VA Form 21-526), which failed to identify any disability. In that application, the claimant claimed Reserve or National Guard service from December 18, 1972, to July 22, 1976. That document indicated that the claimant sustained the unspecified disease or injury while undergoing basic training at Fort Jackson, South Carolina, and advanced individual training (AIT) at Fort Leonard Wood. He reported no postservice treatment for that condition. By RO letter of January 2000, the claimant was notified of the provisions of the VCAA and was asked to identify the disability for which VA disability compensation benefits were sought. In November 2000, the claimant submitted a Statement in Support of Claim (VA Form 21-4138), in which he identified his disability as a hernia. The claimant further submitted a March 6, 1999, report of medical history in connection with his enlistment in the HHSB 1/206th FA, in which he denied any significant medical history and denied any rupture or hernia. He further submitted a report of service medical examination showing that on March 6, 1999, while a civilian, he underwent a service medical examination at the Troop Medical Clinic, Fort Chafee, Arkansas, prior to service enlistment. That medical examination revealed an epigastric ventral hernia, not symptomatic, although another copy of that document shows on the reverse side that he was seen for an examination for enlistment and was found to have a symptomatic ventral hernia. It was indicated that should his symptoms develop and persist, he should see a civilian physician at his own expense. Another document submitted by the claimant showed that he underwent blood chemistry tests on March 7, 1999 at Sparks Regional Medical Center, Fort Smith, Arkansas. As noted, the claimant's DD Form 214 shows that he served on active duty for training (ACDUTRA) with the Louisiana Army National Guard from April 19, 1973 to October 26,1973, and was released by general discharge under honorable conditions. In a letter from the claimant, received at the RO on January 5, 2001, he asserted that he sustained a rupture, or hernia, while he was on active duty; that he is unable to work at all; that his hernia has gotten larger since his return from the Army; and that he had not received any disability benefits from the Army. He submitted a VA Form 21-4142 showing that he was treated for a hernia at Hillcrest Medical Center, but failed to indicate the date of that treatment. The RO requested all medical records of the claimant's treatment at Hillcrest Medical Center. Private treatment records from Hillcrest Medical Center, dated in August 1997, show that the claimant was seen in the Emergency Room for complaints of left face pain of several days duration. Examination revealed a Stensens duct obstruction, left side, which was treated with Cephalexin, 500 mg, and warm packs to the area. There were no clinical findings or reference to a ventral hernia. A report of VA examination, conducted in February 2001, noted the claimant's assertion that while he was on a rifle range during active duty, he fell on a rock and injured his abdomen; that he had pain in his abdominal area and was checked over by a medic and told that he had a ventral hernia but would be okay; that over the years, the hernia has increased in size; that when he went to reenlist in Arkansas, he was told that he would have to have the hernia checked; and that at that time, he had not worked since 1966 secondary to the hernia restricting his lifting abilities to less that 90 pounds; and that lifting more than 90 pounds would result in severe bulging in the abdominal area and a stinging pain lasting two to three days. He denied any nausea, vomiting, bowel obstruction, incarceration of the hernia, colon problems, gastrointestinal complaints, wearing of a hernia belt or truss, or seeing a physician about this problem. Examination revealed a quite noticeable ventral hernia below the mid-epigastric area and superior to the umbilicus. The diagnosis was ventral abdominal hernia, incompletely reducible. In October 2001, the RO requested all service medical and dental records of the claimant. Additional service medical records of the claimant, received in January 2002, show that a report of medical history completed by the claimant in December 1972 in connection with his enlistment in the Louisiana Army National Guard's 1083rd Transportation Company show that he denied any history of rupture or hernia, and stated that he was in good health. A report of service entrance examination, conducted in December 1972, shows that the claimant's abdomen and viscera were normal, and there were no findings of ventral hernia. His physical profile disclosed no physical or mental impairment. A report of periodic medical examination, conducted in May 1976, showed that the claimant's abdomen and viscera were normal, and there were no findings of ventral hernia. His physical profile disclosed no physical or mental impairment. It was indicated that the claimant was assigned to the 1st Support Company, 129th Infantry, Oklahoma Army National Guard. In June 1977, the claimant was seen at the Army Troop Medical Clinic, Fort Chafee, Arkansas, for complaints of a hurt groin after straining his right foot. Examination was negative, and he was told to return if his pain continued. His unit was identified as the 1st Support Company, 129th Infantry, Oklahoma Army National Guard. In February 2002 the RO denied service connection for a ventral hernia, and the claimant and his representative were notified of that decision and of his right to appeal by RO letter of February 25, 2002. He submitted a timely Notice of Disagreement, and requested a hearing before a traveling Veterans Law Judge of the Board of Veterans' Appeals. He subsequently elected to pursue his appeal through an RO Decision Review Officer. The claimant and his representative were provided a Statement of the Case in April 2002. The claimant submitted his Substantive Appeal (VA Form 9), in which he asserted that he was treated for the claimed disability at Fort Jackson, South Carolina, and that such should be reflected in his service medical records. He was notified by RO letter of May 19, 2003, directed to his address of record, that his requested hearing was scheduled before a traveling Veterans Law Judge of the Board of Veterans' Appeals on June 25, 2003. The claimant subsequently failed to report for the scheduled hearing. The claimant then submitted correspondence explaining the reason for his absence, which was construed as a timely motion to reschedule his hearing, and that motion was granted for good cause shown in October 2003. The claimant failed to appear for that scheduled hearing on April 6, 2004, despite being notified of the date, time and place of that hearing at his address of record. The Board will address the matter on appeal based upon the record. Criteria To establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or for disease or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). Active service is defined as including any period of inactive duty training during which the claimant is disabled or died from an injury incurred or aggravated in line of duty or from a covered disease which occurred during such training. For purposes of this section, the term "covered disease" is limited to (1) an acute myocardial infarction, (2) a cardiac arrest, or(3) a cerebrovascular accident. 38 U.S.C.A. §§ 101(24), 1110, 1131 (West 2000); 38 C.F.R. § 3.6 (2003). Prior to November 1, 2000, nontraumatic recurrence or aggravation of a disease process during a period of inactive duty for training was not defined as an injury. For example, manifestations of cardiovascular disease, such as a myocardial infarction of nontraumatic origin, were not to be considered an "injury" to meet the requirements of 38 C.F.R. § 3.6. However, 38 U.S.C.A. § 101(24), which defines the term "active military, naval, or air service" has been amended to also include periods of inactive duty training (INACDUTRA) during which individuals become disabled or die from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. Section 301 also amended 38 U.S.C.A. § 106(d) to provide that if a person was disabled or died as a result of any of these three diseases having occurred while the person was proceeding directly to or returning directly from a period of active duty for training or inactive duty training, such person would be deemed to have been on active duty for training or inactive duty training, as the case may be. Title 38 CFR 3.6(a) and (e) paragraphs have been amended to reflect the new statutory requirements. See Veterans Benefits and Health Care Improvement Act of 2000, PL 106-419, (effective Nov. 1, 2000). ACDUTRA is not considered active duty unless service connection is granted for a condition incurred during a period of ACDUTRA. The presumption of soundness is not applicable to an individual who has served only on ACDUTRA and has not established any service-connected disability. An individual whose service consisted entirely of INACDUTRA may not be presumptively service connected for a disability unless he or she was otherwise disabled from an injury directly incurred in or aggravated during the period of INACDUTRA. 38 C.F.R. § 3.6(a),(d) (2003 ). If not shown in service, service connection may be granted for various chronic diseases if shown disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). The CAVC has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, that a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Chelte v. Brown, 10 Vet. App. 268, 271 (1997). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2003). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The CAVC has also reiterated that, alternatively, either or both of the second and third elements can be satisfied, under 38 C.F.R. § 3.303(b) (2003), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McManaway v. West, 13 Vet. App. 60, 65 (1999) (citing Savage v. Gober, 10 Vet. App. 488, 495-97). The CAVC has established the following rules with regard to claims addressing the issue of chronicity. The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the CAVC's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). A lay person is competent to testify only as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage, 10 Vet. App. at 495-97. The CAVC has further determined chronicity was not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology was the sworn testimony of the appellant himself and when "no" medical evidence indicated continuous symptomatology. McManaway, 13 Vet. App. at 66. In Voerth v. West, 13 Vet. App. 117 (1999), the CAVC held that the appellant had not submitted medical evidence providing a nexus between an in-service injury and a current disability. The CAVC held that where a claimant's personal belief, no matter how sincere, was unsupported by medical evidence, the personal belief cannot form the basis of a claim. The CAVC stated that it clearly held in Savage that Section 3.303 does not relieve a claimant of the burden of providing a medical nexus. Rather, a claimant diagnosed with a chronic condition must still provide a medical nexus between the current condition and the putative continuous symptomatology. Until the claimant presents competent medical evidence to provide a relationship between a current disability and either an in-service injury or continuous symptomatology, the claimant cannot succeed on the merits of the claim. Voerth, 13 Vet. App. at 120. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2003). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis As noted, the veteran served on active duty for training (ACDUTRA) with the Louisiana Army National Guard from April 19, 1973 to October 26,1973. He has reported no additional periods of ACDUTRA, and his original application for VA disability compensation benefits reports Reserve or National Guard service from December 18, 1972, to July 22, 1976. The claimant's service medical records are silent for complaint, treatment, findings or diagnoses of a ventral hernia during his period of active duty for training. A report of medical history completed by the claimant in December 1972 in connection with his enlistment in the Louisiana Army National Guard's 1083rd Transportation Company shows that he denied any history of rupture or hernia, and stated that he was in good health. A report of service entrance examination, conducted in December 1972, showed that the claimant's abdomen and viscera were normal, and there were no findings of ventral hernia. His physical profile disclosed no physical or mental impairment. A report of periodic medical examination, conducted in May 1976, showed that the claimant's abdomen and viscera were normal, and there were no findings of ventral hernia. His physical profile disclosed no physical or mental impairment. The service medical records show that in June 1977, the claimant was seen at the Army Troop Medical Clinic, Fort Chafee, Arkansas, for complaints of a hurt groin after straining his right foot. Examination was negative, and he was told to return if his pain continued. Private treatment records from Hillcrest Medical Center, dated in August 1997, include no complaint, treatment, findings or diagnosis of a ventral hernia. The record includes a March 6, 1999, report of medical history in connection with his enlistment in the HHSB 1/206th FA, in which he denied any significant medical history and denied any rupture or hernia. A report of service medical examination shows that on March 6, 1999, while a civilian, he underwent a service medical examination at the Troop Medical Clinic, Fort Chafee, Arkansas, prior to service enlistment. That medical examination revealed an epigastric ventral hernia, not symptomatic, although another copy of that document shows on the reverse side that he was seen for an examination for enlistment and was found to have a symptomatic ventral hernia. It was indicated that should his symptoms develop and persist, he should see a civilian physician at his own expense. The foregoing evidence shows that the claimant denied any history of a hernia in December 1972; that none was shown on service entrance examination at that time; that a report of periodic medical examination, conducted in May 1976, showed no findings of ventral hernia; that in June 1977, the claimant was seen at the Army Troop Medical Clinic, Fort Chafee, Arkansas, for complaints of a hurt groin after straining his right foot, at which time examination was negative. The first medical evidence of a ventral hernia is dated March 6, 1999, and shows that the claimant is a civilian. Based upon the foregoing, the Board finds that the service medical records are silent for complaint, treatment, findings or diagnosis of a ventral hernia at any time prior to March 6, 1999. Moreover, the above-cited series of service medical examinations without clinical findings of a rupture or hernia constitute affirmative evidence that the claimant did not have a ventral hernia in May 1976 or in June 1977. Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (1999) (Observing that in a case where the claimant was also a physician, and therefore a medical expert, the Board could consider the appellant's own personal interest; citing Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that while interest in the outcome of a proceeding "may affect the credibility of testimony it does not affect the competency to testify." (citations omitted). The Board reiterates the basic three requirements for prevailing on a claim for service connection. To establish entitlement to service connection, there must be (1) competent evidence of a current disability (a medical diagnosis) Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence) Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); and (3) a nexus between the in-service disease or injury and the current disability (medical evidence) Grottveit v. Brown, 5 Vet. App. 91. 93 (1993). See Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran has met the first requirement to prevail on a claim of entitlement to service connection; that is, he has the disability at issue claimed as a ventral hernia. He does not satisfy the other two requirements for prevailing on a claim for service connection. In this regard, there is no evidence of incurrence or aggravation of a ventral hernia in service. The post service diagnosed ventral hernia has not been linked to service on the basis of competent medical evidence, thus the second and third requisites to prevail on a claim of entitlement to service connection have not been met. The veteran is a lay person who has expressed an opinion relating his coronary artery disease to service. He is not competent to address causation or etiology of his heart disease. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Similarly, the Board is not competent to supplement the record with its own unsubstantiated medical conclusions, and certainly cannot oppose the competent VA medical opinion of record. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Simply put, in view of the evidentiary record with application of all pertinent governing criteria, the Board finds there exists no basis upon which to predicate a grant of entitlement to service connection for a ventral hernia. 38 U.S.C.A. §§ 101(2), (23), (24), 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1(d), 3.6(a), (d), 3.159, 3.303 (2003). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for a ventral hernia. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for a ventral hernia is denied. ____________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 459 7 Pag e 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Pa ge 2