Citation Nr: 1123550 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 02-05 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of hernia repair on the basis of aggravation. REPRESENTATION Veteran represented by: Virginia Giraud-Brady, Attorney WITNESSES AT HEARING ON APPEAL Veteran, and Veteran's spouse and daughter ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from October 1972 to October 1974, and from August 1991 to February 1992. His personnel records also indicate various periods of service with the Army National Guard through 1998. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a September 2001 rating decision of the VA Regional Office (RO) in Muskogee, Oklahoma that denied service connection for residuals of hernia repair. The Veteran was afforded a videoconference hearing at the RO in August 2002 before the undersigned Veterans Law Judge sitting in Washington, DC. The transcript of the hearing is of record. The Board remanded the case for additional development in August 2003. By a decision dated in April 2005, the Board denied the Veteran's claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2006 Order, the Court vacated the April 2005 Board decision and remanded the case to the Board for further development and compliance with the instructions contained in the Veteran and the VA Secretary's (parties) June 2006 Joint Motion for Remand. In October 2006, the Board remanded this case to the RO for additional development. The Board denied entitlement to service connection for residuals of hernia repair by decision dated in January 2008 and another appeal to the Court ensued. The Court issued an Order in July 2008 granting a June 2008 Joint Motion by the parties to vacate the January 2008 Board decision and to remand for further development. The Board remanded the case for further development in November 2008 and again in October 2009 and November 2010. The Board is satisfied that there was substantial compliance with its most recent remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the Veteran was examined by VA and an adequate nexus opinion was provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. The evidence of record clearly and unmistakably shows that the Veteran had a hernia repair that preexisted his active duty training and was not permanently aggravated during that period of qualifying active service. 2. There is nothing in the record that otherwise establishes a nexus between the Veteran's current residuals of a hernia repair and his qualifying active service. CONCLUSION OF LAW The criteria for service connection for residual of hernia repair on the basis of aggravation have not been met. 38 U.S.C.A. §§ 101, 1110, 1111, 1153, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2001 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. A subsequent letter was sent to the Veteran in December 2003. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in May 2009, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations of certain diseases during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the types of evidence that "indicate" that a current disability "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA treatment records. And he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in August 2002. Next, specific VA medical opinions pertinent to the issue were obtained. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran 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. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). The Board notes that the Veteran's attorney has stated that the Veteran "reserves the right to argue regarding the credentials of any examiner whose opinion is relied upon by the Board". The Veteran and his attorney have not specifically questioned any examiner's credentials or qualifications sufficient to provide comment. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (where a Veteran does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish that examiner's competency). See also Cox v. Nicholson, 20 Vet. App. 563 (2007) (The Board may assume the competency of any VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.). VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). In the present case, the Board finds that the examination is adequate for rating purposes. The VA examination report contains sufficient details and adequate findings for making a determination in this case. See 38 C.F.R. § 4.2; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). Active military service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2010). Active duty training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2010). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves include the National Guard. 38 U.S.C.A. § 101(26), (27). The definition of active duty also includes any periods of inactive duty for training during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 C.F.R. § 3.6 (2010). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2010). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for a 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) (2010). Additionally, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110. However, presumptive periods do not apply to active duty training or inactive duty training. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474 (1991). At the time of a service entrance examination, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are considered as 'noted'. 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is 'noted' at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). VA's General Counsel has held that to rebut the presumption of sound condition under 38 C.F.R. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held that lay statements by a Veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238, 246 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). Moreover, the Court has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In this regard, a higher court has subsequently explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). A preexisting injury or disease will be considered to have been aggravated by active 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 and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When clear and convincing evidence demonstrates no permanent increase in disability during service, the presumption of aggravation in not applicable. Maxson v. West, 12 Vet. App. 453, 459-60 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Moreover, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of the proffered evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995). 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 (1995). The Board is not required to accept a Veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Evidence The Veteran states that he was on duty October 1972 to October 1974 and that he did not have a problem with his hernia while in the service. He argues that in 1986 he had a hernia repair done. He contends that his hernia was aggravated and became serious while on active duty for training during the summer of 1997. Service treatment records show that the Veteran suffered a midline hernia of the upper abdomen in 1987 during a period of active duty for training which occurred when he was picking up supplies while working his civilian job. Service records show that the Veteran was treated on several occasions for a ventral hernia. In December 1997, a 4-centimeter, well-healed ventral hernia midline scar was noted which was non-tender. There was a history of surgical repair done in 1987. In May 1998 the Veteran reported having occasional problems when doing sit-ups. VA records show that at the time of a surgery outpatient clinic visit in January 1999, the Veteran presented for evaluation of ventral abdominal hernia. He stated that the hernia was first seen 10 years previously. It had been repaired eight years earlier. He stated that in the last 2 to 3 years there had been a reappearance of the hernia while climbing and lifting. The hernia also appeared while eating and drinking. He indicated the hernia was reducible, although sometimes it felt as though a sharp needle was striking the abdomen. In August 1999, the Veteran was noted to have a hernia and surgical repair was recommended. Surgical repair was done in 2002. In January 2002 medical records reflect that the Veteran's hernia had increased in size over the past five years and was limiting his work. In January 2002, the Veteran underwent a ventral hernia repair with mesh, and subsequent records describe his recovery from this procedure. The discharge diagnosis was incarcerated recurrent ventral hernia. Of record is a communication dated in April 2001 from an individual who indicated he had been a medical aid man for the Oklahoma Army National Guard. He reported that "on or about" the summer of 1999 (the digits 99 were crossed out and apparently changed to '96), he was on call to a section the Veteran was assigned to. He stated the Veteran was exhibiting signs and symptoms of hypertension that required immediate evacuation for definitive care. He stated the Veteran had no prior history of illness except for hernia repair "that at the time was healing normally and did not present any complications." In February 2007, the Veteran underwent a VA examination for the purpose of determining whether his repaired hernia had been aggravated by his military service. According to the examination report, it was the VA examiner's medical opinion that the Veteran's first hernia repair was not aggravated permanently or permanently increased in severity beyond ordinary progress by any re-injury or other activity which occurred at any time while the Veteran was serving in a military status. The examiner further stated that the Veteran did have a hernia repair and that it is very common to have incisional hernias when people have any kind of surgery. The Veteran was examined by VA in February 2011. The claims file was reviewed. The Veteran's history was documented and he was examined. He had a well-healed surgical scar noted over the mid-abdomen. He was diagnosed with epigastric ventral hernia status post repair in 1987 and 2002. The examiner reviewed the Veteran's medical history. She reported that there is no documented evidence that the Veteran was treated for a hernia condition between 1991 and 1992 during active duty. She stated that there is no documented evidence that the activity in the military or combat training caused a tear or worsening of the original hernia. She noted that incisional hernia is a common complication after hernia repair surgery. She indicated that there is no documentation showing that the Veteran injured the hernia during training in 1997 and that there is a 5-year gap between the Veteran's history of a rupture of the hernia and the repair in 2002. She went on to say that if the Veteran ruptured the hernia during combat training in 1997 a surgery would have been done sooner than 2002. She said that therefore, it was her opinion that it is less likely than not that the Veteran's residuals of hernia repair did increase in disability beyond natural progression during service. Discussion An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140, 146 (1993). The Board finds the opinions set forth by the VA examiners in the file that the Veteran had a hernia disorder that preexisted service and was not permanently aggravated, or worsened beyond its normal progression, during service, to be both probative and persuasive. First, all of the opinions took into account the Veteran's pertinent medical records, including his service treatment records which included reports of preexisting hernia and his treatment thereafter. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the Veteran's history, and the thoroughness and detail of the opinion). Further the Veteran has repeatedly reported that his disorder pre-existed service. The Board also assigns great probative value to the recent opinion of the most recent VA examiner, indicating that the Veteran had a hernia disorder that preexisted his active duty training and that any current problems were unrelated to service. The examiner based her opinion on a thorough and detailed examination of claims file and supported that opinion with a detailed rationale, which was consistent with the findings the prior VA examiner and the other pertinent medical evidence of record. Prejean, 13 Vet. App. at 448-9. As to the Veteran's attorney's assertion that the VA examiner did not consider the Veteran's lay statements, the Board notes that the opinion expressly addressed and reconciled the Veteran's lay assertions regarding the etiology of his current complaints by explaining how those assertions were not supported by the clinical evidence. Further while she indicated that there was no documentation of a hernia tear during active duty, she went on to say that even if a tear did occur in 1997, the surgery would have been done sooner than 2002. So she considered the Veteran's lay assertions and found them not credible, and she offered medical reasoning for such a finding. Moreover, the Board considers it significant that the VA examiner's opinion constitutes the most recent medical evidence of record and was undertaken directly to address the issue on appeal. Further, there are no contrary medical opinions of record. Based on the foregoing, the Board finds that the evidence of record clearly and unmistakably shows that the Veteran had a hernia disorder that existed prior to service. The Board finds that the presumption of soundness has been rebutted with "contemporaneous clinical evidence or recorded history" in the record. Miller, 11 Vet. App. at 348. Indeed, the Veteran's National Guard service treatment records, reflecting a history of pre-service problems and an in-service diagnosis constitute "contemporaneous clinical evidence or recorded history," as contemplated in Miller. That evidence serves as clear and unmistakable proof that the Veteran's hernia disorder existed prior to service. Moreover, that evidence is corroborated by the Veteran's own statements and the VA examination opinions, which the Board deems highly probative. Turning to the issue of aggravation, the Board finds that the evidence of record clearly and unmistakably shows that the Veteran's preexisting condition was not permanently worsened during his period of qualifying active service. The evidence of record, particularly the determinations of the VA examiners directly negate such a finding. Indeed, while the Veteran was seen in service for complaints, there is no indication that the underlying condition, as opposed to the mere symptoms thereof, actually worsened in service. Hunt, 1 Vet. App. at 297. Accordingly, the Board finds no evidence of a permanent increase in disability in service; thus, the presumption of aggravation is inapplicable in this instance. Maxson, 12 Vet. App. at 459-60 (1999). Next, the Board observes that the VA examiners' opinions and the other competent evidence of record does not in any way suggest a nexus between the Veteran's current hernia residuals and any aspect of his qualifying active service. On the contrary, the VA examiner has expressly determined that no such nexus exists and no other medical provider has noted such a relationship. The Board has considered the Veteran's contentions that his hernia residuals are related to his active service, including to his reported in-service injury. Lay evidence is one type of evidence that the Board must consider when a Veteran's claim seeks disability benefits. See 38 C.F.R. § 3.307(b) (2010). In weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the Veteran. See Caluza, 7 Vet. App. at 511-12. Further, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 Vet. App. 1331 (Fed. Cir. 2006). In this case, the Veteran is certainly competent, as a lay person, to report that he had a hernia injury while on active duty training, as such an event is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However he is not competent to opine as to whether his hernia disorder was aggravated by service as this is a medical determination. As a lay person, without any apparent clinical expertise, he is not competent to opine as to medical etiology or to render medical opinions. See 38 C.F.R. § 3.159(a). Accordingly, his assertions as to medical causation and etiology, absent corroboration by objective medical evidence and opinions, lack sufficient probative value to establish a nexus between his current problems and his time in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). In sum, the Board finds that clear and unmistakable evidence demonstrates that the Veteran had a hernia disorder that preexisted his active duty training and was not aggravated beyond its natural progression during that time period. Moreover, the preponderance of the evidence does not show that his current problems are in any way elated to his period of qualifying active service or to any incident therein. As such, the Veteran's claim for service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53. ORDER Service connection for residuals of a hernia repair is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs