Citation Nr: 1130294 Decision Date: 08/15/11 Archive Date: 08/23/11 DOCKET NO. 08-02 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a residuals of a left inguinal hernia repair. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from August 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In July 2010, the Board remanded this matter for additional inquiry. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's left hernia disorder is not related to service. CONCLUSION OF LAW Residuals of left hernia repair were not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will initially discuss whether the claim decided here has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the claimant has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA provided the Veteran with VCAA notification letters in March 2007 and July 2008. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. In these letters, the Veteran was informed of the elements of his claim, and of the evidence necessary to substantiate the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was advised of the respective duties of the VA and of the Veteran in obtaining evidence needed to substantiate his claim. VA requested from the Veteran relevant evidence, or information regarding evidence which VA should obtain. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 73 Fed. Reg. 23353 (the requirement of requesting that the claimant provide any evidence in his/her possession that pertains to the claim was eliminated by the Secretary [effective May 30, 2008] during the course of this appeal, and this change eliminates the fourth element of notice as required under Pelegrini). And the Veteran received VCAA notice prior to the adverse rating decision on appeal. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. VA afforded the Veteran the opportunity to appear before one or more hearings to voice his contentions. VA obtained medical records relevant to this appeal. And VA provided the Veteran with a VA compensation examination into his claim. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the Veteran in this appeal. Therefore, the Veteran has not been prejudiced as a result of the Board deciding his claim here. II. The Merits to the Claim for Service Connection The Veteran claims service connection for residuals of a left inguinal hernia repair. He maintains that he underwent bilateral hernia repair during active service in the mid 1940s. Since January 1946, the Veteran has been service connected for residuals of a right hernia repair. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. § 3.303(a) (2010). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2010). Certain disorders, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection under 38 C.F.R. § 3.303 will be granted where the record demonstrates (1) medical evidence of a current disability, (2) medical -evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). 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). In this matter, the record demonstrates that the Veteran has residuals of a left hernia repair. A VA medical record dated in March 1954 notes surgical treatment of a left inguinal hernia. A March 2007 VA compensation examination report notes a left scar due to hernia repair. And an August 2008 note from the Veteran's physician notes a scar on the left inguinal area. The preponderance of the evidence of record indicates, however, that the Veteran did not incur the residuals of left hernia repair during service, or as a result of service. The Veteran's service treatment records note "herniorraphy" in January 1945, but these records indicate that the hernia repair was done for a right-sided hernia, for which the Veteran is service connected. These records do not indicate any hernia repair treatment to the left side. The Veteran's discharge report of medical examination dated in January 1946 notes "[r]ight inguinal scar, healed, IMS" but is negative for a left-side inguinal hernia. The earliest evidence of record that the Veteran had a left-side inguinal hernia is found in a VA hospital summary report dated in March 1954, over 8 years after discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be construed as evidence against a claim of service connection). The hospital summary indicates that the Veteran underwent his initial treatment for a left hernia disorder in March 1954. The hospital summary indicates that a pre-surgery examination revealed a "healed right inguinal hernia scar." As with the discharge report of medical examination in January 1946, the March 1954 summary does not note a scar in the left inguinal area, or any other residual of a left-side inguinal hernia repair. Based on the evidence of record, the Board finds that the record is in support of the RO's finding that the Veteran did not undergo left hernia repair until March 1954, several years following the Veteran's discharge from service. The Board notes that the Veteran has offered lay statements into the record that he underwent bilateral hernia repair during service. Lay evidence may be used to diagnose a medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay evidence may be used to diagnose a condition when "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional"). Lay testimony can be considered competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As indicated earlier, lay evidence may show a continuity of symptomatology following service, and thereby prove sufficient to establish service connection. See Barr, supra. But the Board also notes that a layperson is not competent to prove matters requiring medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); 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 issue in this matter is whether the Veteran underwent a particular type of surgical procedure during service. This question is a medical issue. And in this matter, the medical evidence clearly shows that the Veteran underwent surgery to repair his service-connected right hernia during service, not his left hernia. The Board therefore finds the Veteran's assertions to be of limited probative value. While he is competent to attest to the fact that he underwent surgery in service, the Board finds the medical evidence of record to be of more probative value with regard to what type of medical procedure was administered during the in-service surgery (i.e., right inguinal hernia repair). Moreover, in the August 2008 note from the Veteran's physician, it is indicated that the Veteran "[h]as history of hernia repairs bilaterally in 1944 while in the service." The Board finds this statement of limited probative value as well. The Veteran's physician did not indicate a review of the Veteran's claims file. And his opinion appears to be entirely based on the Veteran's own statements, statements that are directly countered by the medical evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). As such, the Board finds the August 2008 letter to be of limited probative value on the issue of whether the Veteran incurred residuals of left-sided inguinal hernia repair during service. In sum, the medical evidence of record indicates that the Veteran underwent right hernia surgery during service, and left hernia surgery in March 1954, several years following service. As such, in weighing the evidence of record, the Board finds the preponderance of the evidence to be against the Veteran's claim to service connection for residuals of left inguinal hernia repair. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a residuals of a left inguinal hernia repair is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs