Citation Nr: 0812121 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-07 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for residuals of a right inguinal hernia. 2. Entitlement to service connection for an upper abdominal wall hernia. 3. Entitlement to a compensable disability rating for status post left inguinal hernia repair. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from June 1976 to June 1979, October 1980 to October 1984, and December 1991 to March 1992, and had periods of National Guard reserve duty between June 1979 and March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that granted the veteran's claim of entitlement to service connection for a right inguinal hernia, and July 2006 and May 2007 rating decisions from the RO in Togus, Maine that denied the veteran's claims of entitlement to a compensable rating for a left inguinal hernia and entitlement to service connection for an upper abdominal wall hernia. The veteran perfected timely appeals of the service connection determinations to the Board. The matter of service connection for a right inguinal hernia was before the Board in November 2004, and was then remanded for further development. In January 2008, the veteran appeared and offered testimony in support of his claim before the undersigned. The veteran's testimony on that occasion has been transcribed and associated with his claims file. The issue of entitlement to a compensable disability rating for status post left inguinal hernia repair is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran did not incur or aggravate a right inguinal hernia during a period of service, including any periods of active duty training or inactive duty training. 2. The veteran did not incur or aggravate an upper abdominal wall hernia during a period of service, including any periods of active duty training or inactive duty training. CONCLUSIONS OF LAW 1. Residuals of a right inguinal hernia were not incurred or aggravated in service. 38 U.S.C.A. §§ 101, 1110, 1111, 1131, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.303, 3.306 (2007). 2. An upper abdominal wall hernia was not incurred or aggravated in service. 38 U.S.C.A. §§ 101, 1110, 1111, 1131, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.303 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, December 2004, February 2006, and December 2006 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. The Board acknowledges that, with respect to the right inguinal hernia claim, complete VCAA notice was only provided to the veteran after the initial unfavorable decision in this case, rather than prior to the initial decision as typically required. However, in a case involving the timing of the VCAA notice, the United States Court of Appeals for Veterans Claims (Court) held that in such situations, the appellant has a right to a VCAA content-complying notice and proper subsequent VA process. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VCAA-compliant letter was issued to the veteran in December 2004. Thereafter, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a Statement of the Case to the veteran in January 2006. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pelegrini v. Principi, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in March 2006, and his service connection claims were readjudicated in July 2006 and October 2007. As such, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical and personnel records, VA medical treatment records, private medical treatment records, the veteran's testimony at his January 2008 Board hearing, and written statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Service Connection The veteran argues that he is entitled to service connection both for residuals of a right inguinal hernia and for an upper abdominal wall hernia. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132. If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Generally, a disability will be service-connected if it was incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, favorable applications of 38 C.F.R. § 3.306 (presumption of aggravation), and 38 U.S.C.A. §§ 1111, 1131 (presumption of soundness) are not available with respect to periods of ACDUTRA or INACDUTRA. In the instant case, on January 1979 separation examination, the veteran was noted to have had normal clinical evaluations of the chest, abdomen, and viscera, and no hernia or lumps were noted either on examination or in the veteran's report of medical history. Service medical records reflect diagnoses and treatment for a left inguinal hernia, beginning in June 1981. In December 1981, the veteran complained of lower abdominal pain, and it was noted that the veteran had had a hernia operation the previous August, and that he reported that before the operation he never had problems, but that after the operation he had had problems on and off with stomach cramps and diarrhea. The veteran was then diagnosed as having viral enteritis. A June 13, 1993 private medical record dated in indicates that the veteran complained of abdominal pain, and reported a history of hernia. The veteran reported diarrhea and periumbilical pains on and off since that morning. It was noted that examination of the veteran's abdomen was benign, and that he had a reducible right inguinal hernia. The veteran was diagnosed as having right inguinal hernia, nonincarcerated, and gastroenteritis. A June 30, 1993 private medical note indicates that the veteran presented with a right inguinal hernia since April 1993, and that he had a large, visible, but reducible, right inguinal hernia. The veteran was at that time diagnosed as having symptomatic large right hernia, and it was noted that he needed surgical repairs. Service personnel records indicate that, in a January 1994 report, the veteran was found to have incurred a right inguinal hernia in May 1993 by lifting equipment during a period of INACDUTRA. The report indicates that the examiner, after speaking to the veteran, came to the conclusion that the veteran was unaware of exactly when he hurt himself, that he stated that he hurt himself or aggravated it further, and that the examiner found it hard to believe that the veteran was unsure of when exactly he had hurt himself. The examiner noted that he believed that the veteran may have hurt himself while on duty, but that he was not a medical doctor and was unsure as to whether a hernia could be a gradual process. An April 1994 notation at the bottom of the January 1994 report indicates that the findings of the report had been disapproved, and that the status of the veteran's right inguinal hernia injury was to be changed to not in the line of duty, existed prior to service (EPTS), with no aggravation. An April 1994 memorandum explaining the April 1994 decision indicated the following: that, based on the evidence collected, the veteran's injury existed prior to training, with no service aggravation; that the veteran stated that he was not sure when the hernia developed; that there was no indication that his line of duty activities affected his injury; that there was no information in his file to indicate any reason to rule aggravation; and that, therefore, the finding of the National Guard Bureau was that the veteran's injury was not in line of duty, not due to own misconduct, EPTS, with no aggravation. It was noted that, due to the adverse impact that the determination may have had, the veteran was invited to make a statement on his behalf. A May 1994 statement indicates that a formal investigation for line of duty determination returned "not in line of duty", "not due to own misconduct", "EPTS", "no aggravation", and indicates that the veteran was permitted to appeal this finding. There is no indication that the veteran initiated such an appeal. June 1986 and June 1994 service examination reports of medical history indicate a history of recurrent left inguinal hernia, beginning in 1981. On June 1994 service examination, the veteran was noted to have had a left recurrent inguinal hernia, reduced, and right surgical scar in the inguinal area. Private hospital records dated from August 1993 to September 1993 indicate that the veteran complained of right inguinal hernia since May of 1993, that he noticed a small, right, inguinal region bump in the first part of May 1993, sometime after doing heavy labor, and that the bump had increased in size with lifting. The veteran underwent a repair of a direct right inguinal hernia, and was given a discharge diagnosis of right inguinal hernia. The veteran was afforded a VA examination in April 1996. It was then noted that the veteran developed a right inguinal hernia, which was repaired in 1992, and apparent small recurrence, adjacent to the external ring in the right inguinal area, was noted. The veteran was diagnosed as having status post repair of right inguinal hernia, and recurrent right inguinal hernia. January and February 2002 VA treatment notes indicate that the veteran was diagnosed as having recurrent right inguinal hernias and small, asymptomatic, epigastric hernia, and underwent surgery to repair these hernias in February 2002. A March 2002 VA examination report indicates that the veteran had undergone right inguinal hernia surgery twice, the first time in 1992 and the second time in February 2002, which was complicated by ischemic right testicle. It was also noted that he had a repair of an epigastric hernia at the same time in February 2002. Physical examination showed a well-healed right inguinal hernia repair and firm right testicle, for which the veteran needed to wear a support or otherwise had significant pain. The veteran was diagnosed as having bilateral recurrent right and left inguinal hernia repairs, and it was noted that the veteran reported that he first developed hernias on active duty. A March 2006 VA note indicates that examination of the abdomen revealed no specific abnormalities, with the abdomen soft and flat, with no overt evidence of hernia. The veteran was diagnosed as having abdominal pain of unclear etiology. A February 2007 VA note indicates that, on examination of the abdomen, there was a small bulge when the veteran coughed, about two inches directly above the umbilicus, which reduced passively under slight pressure. The veteran was diagnosed as having hernias of the abdomen and right inguinal. At his January 2008 hearing, the veteran testified as follows: the first time that he got a right inguinal hernia, the National Guard paid the hospital for his operation; when he went to VA to have his hernia repaired again, the VA physician told him that the lump on his chest was a hernia, too; when he was in the National Guard, he and another soldier were lifting up a two and a half ton truck tire on to the back of a flat bed truck, with the wheel on it, and he did not notice that night that he had a lump; he got home after a drill weekend and he had a hernia; he told the unit that this happened, because he did not have a regular job at the time where he could have gotten hurt; in his first discharge physical for the first three years of active duty, the examiner noted on his discharge physical in front of him that he had a lump on his chest and said it was a cyst; on his discharge physical the second time, they said that his lump was a fatty substance; he did not find out that it was a hernia until his second operation. After reviewing the record, the Board finds a preponderance of the evidence to be against the veteran's claims of service connection for residuals of a right inguinal hernia and an upper abdominal wall hernia. First, the Board does not find that the veteran incurred a right inguinal hernia in service. The Board notes the veteran's contentions that he incurred a right inguinal hernia during a period of INACDUTRA, and that, during the period in which he incurred this injury, that he did not have a regular job at the time where he could have gotten hurt. However, the Board notes that the first medical evidence of the veteran's right inguinal hernia was on private June 13, 1993 examination, and the veteran at that time did not report any in-service injury. Moreover, the formal investigation for line of duty determination, explained in a May 1994 statement, returned "not in line of duty", "not due to own misconduct", "EPTS", "no aggravation". There is no indication that the veteran appealed this finding. In light of this evidence, and in the absence of additional evidence that the veteran's right inguinal hernia was incurred in service, the Board does not find that the veteran incurred a right inguinal hernia in service. Second, the Board does not find that an upper abdominal wall hernia was incurred in service. The Board notes the veteran's contentions that, in his first discharge physical for the first three years of active duty, the examiner noted on his discharge physical in front of him that he had a lump on his chest and said it was a cyst, that, on his discharge physical the second time, the examiner said that his lump was a fatty substance, and that he did not find out that it was a hernia until his second operation. However, despite a noted history of hernias, there is no indication in the medical record of any upper abdominal wall hernia, or lumps on the chest or stomach, until January 2002. In this regard, the Board notes that, on January 1979 separation examination, the veteran was noted to have had normal clinical evaluations of the chest, abdomen, and viscera, and no hernia or lumps were noted either on examination or in the veteran's report of medical history. Also, the June 13, 1993 private medical record indicates that the veteran complained of abdominal pain and reported a history of hernia, and that examination of the veteran's abdomen was benign. In short, the medical record indicates that the veteran did not have any upper abdominal wall hernia until after his periods of service. The Board has considered the veteran's assertions that his hernias are related to service. However, it is well- established that laypersons, such as the veteran, are not qualified to render medical opinions regarding the etiology of disorders and disabilities. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Accordingly, for all the reasons set forth above, service connection for neither residuals of a right inguinal hernia, nor an upper abdominal wall hernia, is warranted. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Entitlement to service connection for residuals of a right inguinal hernia is denied. Entitlement to service connection for an upper abdominal wall hernia is denied. REMAND At his January 2008 Board hearing, the veteran expressed disagreement with the denial of his claim for a compensable disability rating for status post left inguinal hernia repair by the RO in the May 2007 rating decision. The Board notes that this satisfies the requirement of a notice of disagreement under 38 C.F.R. § 20.201. Because the filing of a notice of disagreement initiates appellate review, the claim must be remanded for the preparation of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Therefore this issue must be remanded in order for the RO to issue a Statement of the Case. Accordingly, the case is REMANDED for the following action: With respect to the issue of entitlement to a compensable disability rating for status post left inguinal hernia repair, the RO should furnish the veteran and his representative a Statement of the Case in accordance with 38 U.S.C.A. § 7105 (West 2002). The veteran and his representative should clearly be advised of the need to file a Substantive Appeal following the issuance of the Statement of the Case if the veteran wishes to complete an appeal from that decision. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs