Citation Nr: 1302566 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 11-05 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for frostbite of the feet. 2. Entitlement to service connection for a bilateral shoulder disorder. 3. Entitlement to service connection for hernias. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1949 to August 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision from the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran testified regarding these issues during a Travel Board hearing before the undersigned Acting Veterans Law Judge. The issues were previously remanded by the Board in April 2012 for additional development. The issues have since returned to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for residuals of frostbite and a bilateral shoulder disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence of record indicates that the Veteran's hernia disorder is not related to his active service. CONCLUSION OF LAW The Veteran's hernia disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). Notice 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a 'service connection' claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for 'service connection,' therefore, VA is required 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 matter, VA issued VCAA notice letters in November 2008 and December 2009 to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims of entitlement to service connection, as well as the legal criteria for entitlement to such benefits. The letters informed him of his and VA's respective duties for obtaining evidence. The letters explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. Moreover, the letters were provided to the Veteran prior to the March 2010 adverse rating decision on appeal. See Pelegrini, supra. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Duty to Assist With regard to the duty to assist, the Board notes that, though the RO attempted to obtain the Veteran's service treatment records, those records were apparently destroyed by fire while in the possession of the government. This issue will be addressed further in the decision below. The claims file does contain private treatment records and reports obtained by the RO. Additionally, the claims file contains the Veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The record shows that the Veteran has been examined by VA in connection with his claim for service connection for a hernia disorder. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding that issue on appeal. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Service Connection and Lay Evidence Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Factual Background and Analysis In his claim, the Veteran has asserted he has hernias related to his military service in Korea. As noted previously, the Veteran service treatment records are unavailable. Post-service, the Veteran complained of hernia trouble in a November 1995 private treatment note. In a January 1996 private physical examination, the examiner noted that the Veteran had a hernia with a second opinion given in the middle of 1995. In a November 2002 private treatment record, the Veteran reported that he was referred with a left inguinal hernia which he noticed approximately two years ago after lifting very heavy log. He reported that it had been very prominent for the past two years but became symptoms within the last six months. He stated that he previously underwent a right inguinal hernia repair in 1995. A private operation record dated in December 2002 indicates the Veteran underwent repair of left indirect inguinal hernia. In a June 2008 private treatment record, the nurse noted a previous history of a hernia in the right groin. During the immediate time, the Veteran had a cyst in the left groin growing for the previous two months. The examiner noted he was positive for a hernia in the right groin. During a June 2008 follow-up, the examiner noted that his infect cyst had erupted and drained. In November 2009, the Veteran was again referred for evaluation of recurrent right inguinal hernia. It was noted that this was originally repaired in 1995 only to recur. At that time, the Veteran underwent another repair of recurrent right inguinal hernia. During a February 2012 hearing, the Veteran reported he did not have hernia repair while in active service. He reported since service he has had three hernias. During an April 2012 VA examination, the examiner noted a diagnosis of inguinal hernia in 1995, 2002, and 2009. The examiner reviewed the claims file and conducted a physical examination during which he found no current hernias detected. The examiner opined that it was less likely than not incurred in or caused by active service. The examiner noted that the Veteran's occupational history included heavy equipment/construction, timber, and corrections which would have contributed to his hernia condition. Furthermore, the record indicates the Veteran's 2002 left inguinal hernia appeared after lifting a heavy log. The Veteran does not have chronic, progressive complaints of a hernia condition on record other than the surgeries listed. As noted above, the Veteran's service treatment records are unavailable. He also has not related his hernia disorder to any injury in service, as would prompt application of 38 U.S.C.A. § 1154(b) in a case involving participation in combat with the enemy. Private treatment records dated between the mid-1990s and 2010 note three instances of hernia repair. These records, however, are entirely devoid of any opinions or other commentary suggesting a link between the current disease and service. In this case, the Board notes that the Veteran went more than four decades after service before reporting, or receiving documented treatment for, his claimed hernia disorder. See Maxson v. Gober, supra; see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Moreover, the Board finds that the Veteran's lay contentions - which constitute the only evidence of record, lay or medical, in support of his claim - are very substantially outweighed by the VA examiner's opinion. This examiner reviewed the entire claims file, provided an opinion that is consistent with the 40-plus year gap between service and initial complaints and treatment, and offered a rationale for that opinion. As noted above, the Veteran has not asserted that he had hernia surgery in service, a fact which distinguishes this claim from the two claims being remanded below. As contrasted with the Veteran's lay contentions, even if considered credible, this medical opinion has very substantial probative value and weight. This medical opinion leads the Board to the conclusion that the Veteran's current disability is not related to any incident in service. Based on the above, given the absence of continuity of symptomatology and, importantly, any favorable medical nexus opinion regarding his complaints and active duty, the Board finds that the preponderance of the evidence is against a grant of service connection for a her disorder, and the claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a hernia disorder is denied. REMAND The issues of entitlement to service connection for a foot disorder (cold injury) and bilateral shoulder disorders were previously remanded by the Board in April 2012. At that time, the Board requested a VA examination to determine if the Veteran had current feet and shoulder disorders and, if so, and opinion stating whether or not those disorders were related to his active service. The Veteran underwent a VA examination in April 2012. At that time, the examiner noted a diagnosis of residuals of cold injury, bilateral feet, and noted a date of diagnosis as injury in service diagnosis post-service. The examiner noted the Veteran claimed to have frostbitten to his bilateral feet in service in 1950, but that he was not treated in service. Since then, he has had paresthesias, pain to bilateral feet daily. Upon examination, the examiner noted cold sensitivity, color changes, local impaired sensation, nail abnormalities and numbness of both left and right feet. Diagnostic testing showed osteoarthritis of both feet. The examiner went on to opine that the condition was less likely that not incurred in or caused by the claim in-service injury, event or illness. Further, the Veteran does not have chronic, progressive complaints of bilateral foot condition in the claims file. Concerning the issue of service connection for a bilateral shoulder disorder, the Board finds that the April 2012 VA examination report on that issue is also inadequate for VA compensation purposes. At that time, the examiner noted diagnosis tendonitis bilateral shoulders with a date of diagnosis post-service. Diagnostic testing showed degenerative changes of both shoulders. The examiner went on to opine that the disorder as less likely that not incurred in or caused by the claim in-service injury, event or illness. The examiner noted that the Veteran's service treatment records were silent for a shoulder disorder, and the Veteran does not have chronic, progressive complaints o or diagnosis of shoulder condition on record. The Board finds neither opinion is inadequate for VA compensation purposes. First, the opinions do not address the Veteran's assertions that he had a shoulder and frostbite injury during combat in service. While the examiner noted the Veteran's claims in the report, the opinion does not answer whether it is at least as likely as not that any current shoulder or foot disorder is related to the Veteran's claimed in-service injury. Second, the examiner seemed to make contradictory statements when he noted that the Veteran had a diagnosis of shoulder tendonitis and cold injury related to service and then stated that the Veteran needed to produce records of a diagnosis and progressive disease pattern of each disorder in order to base an opinion. Therefore, the Board finds another VA opinion is necessary to determine if any foot or shoulder disorder is related to the Veteran's claimed in-service injuries. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be afforded an appropriate VA medical examination to determine the severity, nature, and etiology of his claimed bilateral foot (cold injury) and bilateral shoulder disorders. The claims file (including Virtual VA documentation) must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. The examiner must determine whether the Veteran has current foot and/or shoulder disorders. If such disorders are diagnosed, the examiner must offer an opinion (or opinions) on whether the current disorders are at least as likely as not (i.e., a 50 percent or greater probability) etiologically related to the Veteran's presumed injuries during service. All opinions must be supported by a complete rationale in a typewritten report. 2. The RO should then readjudicate the issues on appeal. If the determination of either of these issues remains unfavorable to the Veteran, the RO should issue a Supplemental Statement of the Case. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on this matter. 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 of Veterans' Appeals 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. 2012). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs