Citation Nr: 1007709 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 07-18 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for status post right inguinal hernia repair (a "hernia disability"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served with the Recognized Guerrillas from April 1945 to January 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. The Veteran submitted additional evidence that has not been reviewed by the RO, but waived RO review in a January 2010 statement from his representative. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's right inguinal hernia did not have onset in service and was not caused or aggravated by the Veteran's active service. CONCLUSION OF LAW The criteria for entitlement to service connection for status post right inguinal hernia have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking entitlement to service connection for status post right inguinal hernia. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). In general, service connection requires (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). 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) (2009). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2009). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2009). It is unclear from the evidence of record whether the Veteran ever received any medical treatment in service. It appears he did have a medical examination at entrance into service, but service personnel records show that no record of this examination existed at separation. However, of record is a VA Form 8-526c, which was received by the RO in August 1953. On this document, which bears the Veteran's signature, the Veteran denies having a combat wound or injury during active service, providing what the Board finds to be highly probative evidence against the Veteran's claim. In 1953, the Veteran filed a service connection claim for the residuals of a fracture to the right arm, body pains, fever, and headaches. In an August 2005 statement, the Veteran contends that he developed an inguinal hernia in service because of lifting heavy ammunition and supplies and that after he left the military, this disability was of such severity that it interfered with his ability to perform activities of daily living and pursue gainful employment. In a March 2007 statement, F.T., who claims to have served with the Veteran during World War II, stated that the Veteran suffered from a painful bulging hernia that prevented him from running during a bombing by the Japanese. In this regard, the Board must finds that if the Veteran had truly suffered from a disability of such severity in and after service, the Board would expect that the Veteran would have sought compensation for his inguinal hernia in 1953 when he filed his first claims for VA benefits, citing four disabilities, but not the hernia. The Board finds that the fact that the Veteran did not file a claim for an inguinal hernia in 1953 is evidence that the Veteran did not suffer from this disability either in service or for many years after service, providing highly probative factual evidence against this claim, particularly in light of the Veteran's own statement that the hernia condition was of such severity that it interfered with his ability to perform activities of daily living and pursue gainful employment. Based on this statement, it clear he would have cited to this problem in 1953. Indeed, the first evidence that the Veteran suffered from a right inguinal hernia is hospital records from the University Health Network where the Veteran underwent surgery to repair a right inguinal hernia in June 1999, over fifty years after service. The United States Court of Appeals for the Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In light of the significant period of time between the Veteran's military service and the first post-service reference to an inguinal hernia, the Board must find that such facts provide evidence against this claim. While the Veteran claims to have been treated for his inguinal hernia in the late 1940s by a "Dr." Antonio Villanueva, an investigation by VA, which is documented in a January 2002 memorandum that is of record, found that this individual was not in fact a licensed physician. Rather Mr. Villanueva is part of claims fixing organization and manufactures fraudulent medical evidence to use in claims for VA benefits. The fact that the Veteran has attempted to rely on this individual to establish his claim for service connection severely undermines the Veteran's credibility and provides additional evidence against the Veteran's claim. In support of his claim, the Veteran has submitted treatment records from Dr. R.G., who appears to be the Veteran's primary care physician. In these records, Dr. R.G. notes that the Veteran had surgery to repair an inguinal hernia in 1999 and speculates that this condition might have been aggravated by the Veteran's military service. Regarding this evidence, the Board first notes that speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Additionally, the probative value of this evidence is extremely limited because it appears that in rendering his opinion, Dr. R.G. is relying on the Veteran's own statements that he suffered from an inguinal hernia in service. As the Board has discussed earlier, there is no objective medical evidence to support the Veteran's assertions and considerable evidence to suggest that the Veteran is not credible. The Veteran has also submitted a number of statements and affidavits from individuals who claim to have served with him and who allegedly either heard him complain about his hernia or observed a bulge in his abdomen. The Board finds that these statements have little probative value for the following reasons: Firstly, assuming that the individuals who submitted the statements in question really did serve with the Veteran, they are undoubtedly motivated to help the Veteran with his claim. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character"). More significantly, as the Veteran's involvement with Antonio Villanueva suggest a willingness to manufacture evidence, the Board cannot help but wonder if the individuals who submitted statements on behalf of the Veteran actually served with him or if they are even real people. Finally, the medical evidence the Veteran has submitted from Dr. R.G., the University Health Network, and VA shows that the Veteran is suffering from cognitive impairment, possible age related. Thus, the Board has some concern that even if the Veteran has filed his claim in good faith, he is unable to accurately remember the events of his military service over sixty years ago and may be confused about the onset of his claimed disability. The Board has read the Veteran's many letters to VA and is sympathetic to the Veteran's reports of poor health and financial hardship. However, the Board must find that there is other more probative evidence of record that outweighs the Veteran's own statements concerning the etiology of his right inguinal hernia and indeed, that undermines the credibility of the Veteran's statements and his recollection of events. Thus for all the above reasons, the Board must find that the Veteran's right inguinal hernia did not have onset in service or for many years after serve and is not otherwise etiologically related to the Veteran's active service. Accordingly, entitlement to service connection for status post right inguinal hernia repair is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (the Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 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, each of the elements of the claim, including notice of what is required to establish service connection. The veteran must also be informed that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice addressing the rating criteria or effective date provisions that are pertinent to the appellant's claim was not provided prior to the initial RO decision and was not followed by readjudication, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. The remaining VCAA duty to notify was satisfied by a letter sent to the Veteran in August 2005, prior to the initial RO decision. This letter informed the Veteran of what evidence was required to substantiate his claim and of VA and the Veteran's respective duties for obtaining evidence. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). It appears that all evidence necessary for a fair adjudication of the claim is of record. The RO has obtained the Veteran's service records, as well as VA and private treatment records. The Board has also considered whether the Veteran should be afforded a VA examination for his status post right inguinal hernia repair, but as there is no evidence of a right inguinal hernia in service, a referral for a VA examination is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the service and post-service records, as a whole, provide highly probative evidence against this claim, for reasons cited above. On a factual basis, the Board has found that the Veteran did not have a hernia during his military service. Therefore, a VA examination is not warranted. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Based on the above, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs