Citation Nr: 0813526 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-41 061 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a hernia condition. 2. Entitlement to service connection for bilateral foot pain. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The veteran served on active duty from September 1961 to September 1963. Procedural history This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2005 and August 2005 decisions by the RO. In the June 2005 decision, the RO denied service connection for a hernia condition, bilateral foot pain, and bilateral hearing loss. In the August 2005 decision, the RO denied service connection for tinnitus. On May 24, 2007, the veteran, who had not requested a Board hearing in his October 2005 substantive appeal, made a belated request for a personal hearing. By a letter dated August 6, 2007, the Board denied the veteran's late request for a hearing because he had not provided good cause for requesting a hearing. See 38 C.F.R. § 20.1304 (2007). Although the letter offered the veteran the opportunity to provide good cause, he did not further respond. The issues of entitlement to service connection for bilateral foot pain, bilateral hearing loss, and tinnitus are addressed in the REMAND portion of the decision below, and is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. The veteran underwent hernia repair surgery in October 1993; the medical evidence of record does not indicate that he has any residuals thereof, nor does he have a hernia. 2. A preponderance of the competent medical evidence supports the conclusion that there is no connection between the 1993 hernia repair procedure and the veteran's active military service thirty years earlier. CONCLUSION OF LAW Residuals of hernia surgery were not incurred in or aggravated by military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Entitlement to service connection for a hernia condition. The veteran seeks entitlement to service connection for a hernia condition. In essence, he contends that he experienced groin pain in service, and that this was related to hernia surgery he underwent in 1995. As is discussed elsewhere in this decision, the issues of service connection for bilateral foot pain, bilateral hearing loss, and tinnitus are being remanded for further development. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue of service connection for a hernia condition currently being decided on appeal. The Board observes that the veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated March 25, 2005, including a request for evidence of "a relationship between your current disability and an injury, disease, or event in military service." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced March 2005 letter, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised that VA would assist him with obtaining "medical records, employment records, or records from other Federal Agencies." With respect to private treatment records, the letter informed the veteran that VA would attempt to obtain any additional information or evidence he identified and included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the veteran could complete to release private medical records to the VA. The March 2005 letter further emphasized: "You must give us enough information about these records so that we can request them from the person or agency who has them. It's still your responsibility to support your claim with appropriate evidence" The March 2005 VCAA letter also instructed the veteran to send any evidence that he had in his possession. This complies with the "give us everything you've got" provision contained in 38 C.F.R. § 3.159(b) in that the RO informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, element (1) is not in dispute. As explained above, the veteran received notice as to elements (2) and (3) in the March 2005 VCAA letter. The veteran was provided specific notice of the Dingess decision in a letter dated July 24, 2006, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the July 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In any event, because the veteran's claim of service connection for a hernia condition is being denied, the matters of degree of disability and effective date are moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim as to the current issue being decided on appeal, that of service connection for a hernia condition, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the veteran's VA outpatient medical treatment records, private treatment records, and his service medical records. The Board notes that the veteran was not provided a VA examination in connection with his claim of service connection for a hernia condition. No examination is required because he veteran has not presented evidence either of a current disability or in-service disease or injury. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim for VA benefits]. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no objective evidence of the in-service incurrence of a hernia, nor is there any indication that any residuals of the veteran's 1995 hernia surgery exist.. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. Accordingly, the Board will proceed to a decision as to this issue. Relevant law and regulations Service connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Continuity of symptomatology For the showing of 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2007); Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). In Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court stated that in Savage it had clearly held that 38 C.F.R. § 3.303 does not relieve the claimant of his burden of providing a medical nexus. Analysis The veteran's contentions The veteran essentially contends that he had a hernia condition that was first manifested in service during 1962, and progressed until he had to undergo bilateral inguinal hernia repair in October 1993. He has not specifically contended that he has a current hernia disability, nor has he contended that he suffers from residuals of the October 1993 hernia repair surgery. Discussion In the interest of clarity, a Hickson analysis will be employed. With respect to Hickson element (1), current disability, the record shows no current residual disability due to the bilateral inguinal hernia repair surgery that the veteran underwent during October 1993. A treatment note by his surgeon made in November 1993, one month after the hernia repair surgery, stated that the wounds had healed nicely, and no evidence of difficulty was noted. The veteran has made no claim of current residual disability. The record since November 1993 reveals no residual disability. Specifically, an April 2004 private medical record indicated that the veteran "used to have a hernia that he had repaired many years ago." On examination, no hernias were identified. Essential to the award of service connection is the first Hickson element, existence of a disability. Without it, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) [noting that service connection presupposes a current diagnosis of the claimed disability]; see also Chelte v. Brown, 10 Vet. App. 268 (1997) [observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection]. In this case, there is no competent medical evidence of a current hernia. Moreover, a careful review of the medical evidence indicates that the 1993 hernia repair surgery was successful, with no subsequent complaints on the part of the veteran and no physical findings of any residuals.. Thus, there is no competent medical evidence that establishes that the veteran has a hernia or a hernia-related disability. Service connection is accordingly not warranted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met, and the claim fails on this basis alone. For the sake of completeness, the Board will also address Hickson elements (2) and (3). See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide in the alternative]. With respect to Hickson element (2), evidence of in-service occurrence or aggravation of a disease or injury, the veteran's service medical records reveal complaints of groin pain in March 1962, April 1962, and June 1962. The diagnostic impression was muscle strain. [In a December 1978 decision, the RO denied the veteran's claim of service connection for groin pain.] Crucially, although the veteran was evidently carefully evaluated for hernias in service, none were identified. The veteran himself contends that he had a hernia in service. Implicit in his presentation is the contention that such hernia was misdiagnosed as muscle strain by service medical personnel. In support of his claim, the veteran has presented a June 2005 statement by his mother, V.S., who stated that he had hernias when he returned from service in 1963. V.S. stated that "as far as she knew, he went to service with no problems, but came home with 2 pulled spots, the starting of hernias which later had to be repaired." Although the veteran asserts that his difficulties with hernias existed since service, and that the statement of V.S. indicates that he returned from service with abdominal "pulled spots", the record does not establish that either has the medical training necessary to offer competent opinions on matters of medical diagnosis or etiology. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (a lay person is not competent to offer opinions that require medical knowledge); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements offered by the veteran and his mother are not competent medical evidence and do not serve to establish the in-service existence of a hernia. Thus, element (2) has also not been satisfied, and the veteran's claim additionally fails on that basis. Hickson element (3) requires medical evidence of a nexus between the claimed in-service disease or injury and the current disability. In the absence of either a current disability or an in-service hernia, medical nexus is an impossibility. Indeed, the record does not contain a medical nexus statement. The veteran has contended, in substance, that he had problems with hernias continually after service. The Board is of course ware of the provision concerning continuity of symptomatology, 38 C.F.R. § 3.303(b), which has been discussed in the law and regulations section above. Any contention of the veteran and his mother regarding continuous hernia symptoms after service are not consistent with the objective medical evidence in the record. While he complained of groin pain in service, he was not diagnosed with a hernia in service. Although he complained of continued groin pain after service, the veteran was not diagnosed with hernia by his own private doctor or a VA examiner. The veteran's private doctor, in an August 1978 report of examination, made no diagnosis relating to the veteran's complaints of groin pain, and noted that his examination of the abdomen was negative. In December 1978, a VA examiner diagnosed the veteran with bilateral groin pain of unknown etiology. The examiner noted that the veteran had some tenderness in the inguinal areas bilaterally, but no abnormalities were palpable. The veteran was not in fact diagnosed with bilateral hernias until October 1993, some 30 years after service. Although not disbelieving the veteran's complaints of groin pain throughout the years, the Board finds that his statements, and those of his mother, concerning hernias after service lack credibility and probative value. As discussed above, neither the veteran or his mother have the requisite skill to render medical diagnoses. See Espiritu, supra. To the extent that the veteran (or his mother) may be deemed competent to report on their own observations of his groin area, see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Board finds such to be outweighed by the utter lack of medical evidence of hernias until thirty years after service. In particular, the two negative examinations in 1978 are fatal to the veteran's contention as to continuity of symptomatology. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]. In Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court made clear that 38 C.F.R. § 3.303 does not relieve the claimant of his burden of providing a medical nexus. See Voerth, 13 Vet. App. 117, 120-1 [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. In short, element (3) has also not been satisfied. Therefore, based on the foregoing medical evidence, Hickson element (1) is not met because there is no showing of any current residual disability from the October 1993 bilateral hernia repair surgery. Hickson element (2) is not met because the veteran was never diagnosed with a hernia in service. Hickson element (3), a nexus with service, to include continuity of symptoms after service is manifestly not met; hernias were not diagnosed until 1993, thirty years after service. Therefore, a preponderance of the evidence of record is against a grant of service connection for a hernia condition. The veteran's claim is denied. ORDER Service connection for a hernia condition is denied. REMAND For reasons expressed immediately below, the Board finds that the three remaining issues on appeal must be remanded for additional evidentiary development. 2. Entitlement to service connection for bilateral foot pain. The veteran's September 1961 induction physical examination notes that he entered military service with pes planus. Treatment records from the veteran's podiatrist for the period from February 2001 to September 2004 show that the veteran has experienced foot disorders which have caused painful feet, difficulty walking, and the need to wear orthotics. These foot problems include revision of a left foot heel spur, excision of exostosis of the distal medial aspect of the fifth right toe, recurrent exostosis on the fifth right toe, and plantar faciitis/fibromatosis of the right foot (but evidently not pes planus). This issue presents certain medical questions which cannot be answered by the Board itself See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions concern the relationship, if any, between the recently identified foot disabilities and the veteran's period of active service. In addition, there is the matter of whether pes planus still exists and if so was it aggravated during or due to military service. These questions must be addressed by an appropriately qualified health care provider. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2007) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. 3 . Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. The veteran contends that he was exposed to excessive levels of noise in service, and that he has had hearing loss and tinnitus since service. The record shows that the veteran has been diagnosed with bilateral hearing loss and tinnitus. He has submitted an opinion from a licensed hearing aid specialist, who stated that the veteran's hearing loss and tinnitus were as likely as not to have been caused by noise exposure in service. A remand is needed in order to obtain a VA audiometric examination and an opinion as to the likelihood that any current hearing loss and/or tinnitus is related to the claimed noise exposure in service. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should ask the veteran to identify, and provide releases for any additional, relevant private treatment records that he wants VA to help him obtain. The veteran should specifically be asked for a release to obtain treatment records from his podiatrist, Dr. M.W. from September 2004. Any medical records so obtained should be associated with the veteran's VA claims folder. 2. VBA should schedule the veteran for an examination in order to determine the nature of any current foot disorder and the relationship, if any, of such to his military service. An opinion must be provided as to the following questions: a. Does the veteran have a current foot disability? Please identify any disability found. b. Is it at least as likely as not any current disability of the feet can be attributed to his period of active service? c. Did any foot disability pre-exist his entry into active military service in September 1961? If so, did such disability undergo a chronic or permanent increase in severity during or due to the veteran's period of active military service in from September 1961 to September 1963? A report should be prepared and associated with the veteran's VA claims folder. 3. VBA should schedule the veteran for an audiological examination. The examiner should determine whether the veteran has a current hearing disability, including tinnitus. If it is determined that he does have such a disability, the examiner should offer an opinion as to whether it is at least as likely as not that any currently noted hearing loss and/or tinnitus can be attributed to his period of active military service. A report should be prepared and associated with the veteran's VA claims folder. 4. After undertaking any other development deemed appropriate, VBA should readjudicate these issues. If any benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. The record should then be returned to the Board for further review, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 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). ________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs