Citation Nr: 1233131 Decision Date: 09/25/12 Archive Date: 10/01/12 DOCKET NO. 11-20 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a left hernia repair. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran, who is the appellant, served on active duty from February 1950 to June 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2012, the Veteran appeared at the RO and testified at a hearing before a Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran claims that a left hernia repair that he underwent in May 2009 was the result of an abdominal injury he sustained during service when a cargo net hit him. He alleges that after the injury he underwent a right hernia repair and that a left hernia was not surgically repaired because it was the right side that was giving him more trouble. He testified that he did not actually know about the left hernia until just before another right hernia surgery in 1974. The Veteran furnished a private medical opinion, dated in April 2011, in which Dr. McConville stated that the Veteran had received a severe abdominal injury in service that resulted in surgery on a right inguinal hernia and that the Veteran now had a ventral hernia that was shown approximately three years previously on a VA ultrasound. He opined that the Veteran's severe injury to his abdomen in 1953 weakened his abdominal muscles and resulted in the development of numerous hernias in his inguinal area and upper abdominal area. It is not shown that the physician reviewed any records contemporaneous with the Veteran's period of service, which do not document an abdominal injury. Further, VA records in May 2009 indicate that the Veteran underwent surgery for a left inguinal, not ventral, hernia. In short, the private medical opinion is inadequate to decide the claim. The Veteran has not been afforded a VA examination to evaluate the claim, which is necessary to determine whether the left hernia that is related an in-service injury. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine: a). Whether the Veteran has a left inguinal hernia, which was repaired in May 2009 or ventral hernia as described by Dr. McConville in April 2011 or both. b). For any current left hernia is it at least as likely as not (probability of 50 percent or more), less likely than not (probability less than 50 percent), or an opinion is not possible without resort to speculation, that the left hernia was caused by an abdominal injury during service in late 1952 or early 1953, or otherwise related to his period of service from February 1950 to June 1953? In formulating an opinion, the VA examiner is asked to consider the following significant facts of the case. In statements and testimony, the Veteran indicated that he sustained an injury to his abdomen in late 1952 or early 1953 when he was struck by a cargo net, which he is competent to describe. The service treatment records show "relaxed inguinal rings, bilaterally" that were not considered disabling at the time of an enlistment physical examination in February 1950; In service, the Veteran had a right inguinal hernioplasty in January 1953; There were no complaints, treatment, or diagnosis of a left hernia; and a normal abdomen at the time of a separation physical examination in June 1953. After service, the Veteran underwent surgery for recurrent right inguinal hernia in January 1974 and September 2009, and a left inguinal hernia repair in May 2009. A discharge summary, dated in January 1974, from Lee County Hospital indicates that the Veteran's history included both right and left inguinal hernia repairs, although up to that date there is no documentation of a repair of the left hernia. Dr. McConville, a private family practitioner, opined in April 2011 that the Veteran had a severe injury to his abdomen in 1953, which weakened his abdominal muscles and resulted in the development of numerous hernias in his inguinal area and upper abdominal area; he indicated that the Veteran now had a ventral hernia that was shown approximately three years previously on a VA ultrasound. The VA examiner is asked to consider that the mere absence of medical records documenting a claimant's complaints, diagnoses, or treatment for the claimed disorder cannot, by itself, be the basis for any medical opinion that the disorder was not due to military service. If, after a review of the record, an opinion on causation is not possible without resort to speculation, the VA examiner is asked to clarify whether causation cannot be determined because there are other potential causes (if so, please identify the other potential causes), and the events in service are not more likely than any other to cause the Veteran's left hernia, status post repair, and that an opinion on causation is beyond what may reasonably be concluded based on the evidence of record, that is, there is no other test or records, if procurable, that would facilitate a more conclusive opinion, considering current medical knowledge and after a review of the medical literature, if necessary. The Veteran's file must be made available to the VA examiner for review. 2. After the above development is completed, adjudicate the claim. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2011). _________________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2011).