Citation Nr: 1308949 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-45 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of hernia surgery. 2. Entitlement to service connection for residuals of hydrocele surgery. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1951 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were previously presented to the Board in July 2012, at which time they were remanded for additional development. The agency of original jurisdiction was ordered to provide the Veteran with a VA medical examination. This was accomplished in September 2012. The required development has thus been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDINGS OF FACT 1. A well-healed right inguinal hernia surgical scar and prior surgical removal of the right testicle were noted upon the Veteran's entrance into service. 2. Clear and unmistakable evidence that a left inguinal hernia existed at the time of the Veteran's enlistment for active military service has been presented. 3. Clear and unmistakable evidence that the Veteran's left inguinal hernia did not permanently increase in severity during service has been presented. 4. The Veteran does not have a current hydrocele of the left testicle. CONCLUSIONS OF LAW 1. Clear and unmistakable evidence that the Veteran's left inguinal hernia preexisted service has been presented. 38 U.S.C.A. §§ 1101, 1110, 1111, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. Clear and unmistakable evidence that the Veteran's preexisting left inguinal hernia was not aggravated by service has been presented. 38 U.S.C.A. §§ 1101, 1110, 1111, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The criteria for service connection for residuals of hydrocele surgery have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case VA has satisfied its duties to notify under the VCAA. In an April 2010 letter, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, this letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The initial notice was issued prior to the adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical treatment records. The Veteran was also afforded VA medical examinations in July 2010 and September 2012. The Board notes that the VA medical evidence contains sufficiently specific clinical findings, informed discussion of the pertinent history and clinical features of the disabilities on appeal, and pertinent medical opinions regarding the origins and any possible aggravation of the disabilities before the Board; thus, the medical evidence is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Service Connection for Residuals of Inguinal Hernia and Hydrocele Surgery The Veteran seeks service connection for residuals of an inguinal hernia and hydrocele surgery. He contends that he has residual pain and other symptoms resulting from a hernioplasty performed during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). The conditions at issue are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran is presumed 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 examination, acceptance, 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; 38 C.F.R. § 3.304. If a disorder was not noted on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. If the government meets this burden, the presumption of soundness under 38 U.S.C.A. § 1111 is rebutted, and the veteran is not entitled to service-connected benefits. If the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, a veteran's claim is one for direct service connection. Wagner, 370 F.3d at 1097. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). In explaining the meaning of an increase in disability, the U.S. Court of Appeals for Veterans Claims (Court) has held that "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 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). In determining whether a condition preexisted service, a veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the condition, and lay and medical evidence concerning the inception, development and manifestations of the condition must be considered. 38 C.F.R. § 3.304(b); see Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Upon review of the record, the Board finds that, upon physical examination for service entrance in November 1951, the Veteran was noted to have a well-healed right inguinal hernia scar and prior surgical removal of the right testicle. The Veteran underwent a hernioplasty in April 1952 during service, in order to treat a left recurrent indirect inguinal hernia. A left inguinal hernia scar was not noted at the service entrance examination; however, on a subsequent March 1952 medical board examination, the Veteran was noted to have both a reducible left inguinal hernia and a well-healed incision of the upper portion of the left scrotal sac and distal third of the left inguinal canal. In March 1952, the Veteran gave a history of a left inguinal hernia present at birth for which he subsequently underwent surgical repair at age 10, in approximately 1938. The Veteran reported that he experienced recurrence of his left inguinal hernia and underwent a second inguinal hernia repair prior to service in 1942; that prior to service, in 1949, the undescended right testicle was surgically excised; and that following his 1942 surgery, he reported that he continued to experience "pain and tenderness" in the left inguinal region. After examining the Veteran and taking his medical history, a physician opined that the Veteran's left inguinal hernia pre-existed service, and surgical repair was subsequently afforded him during service in April 1952. The Board notes first that only a well-healed right inguinal hernia scar, along with removal of the right testicle, was noted on service entrance in November 1951; thus, a left inguinal hernia was not noted at service entrance. The Veteran later reported a history of two prior left inguinal hernia repairs prior to service, and on a more detailed Medical Board examination in March 1952, prior to any in-service surgery, the Veteran was noted to have a well-healed left inguinal hernia scar. This surgical scar is clear and unmistakable physical evidence of one or more pre-service left inguinal hernia repairs, as confirmed by the Veteran's own in-service admissions in 1952. He is competent to relate that such a diagnosis was made by a medical professional prior to service and that he underwent such surgical procedure. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis). The Board also notes that the Veteran reported during treatment in service in 1952 that he continued to experience pain and tenderness in the left inguinal region following the second pre-service 1942 left inguinal hernia repair, and he is competent to report such lay observable symptoms at any time, including prior to service. Id. As noted above, the Veteran underwent an April 1952 hernioplasty in order to repair the left inguinal hernia noted on examination in March 1952. Thereafter, he did not report or seek treatment for additional symptoms related to an inguinal hernia. On examination for service separation in June 1954, he was noted to have a well-healed left inguinal hernia repair scar which was asymptomatic. No current pain or tenderness of the groin region was noted. Based on this evidence, the Board finds that, while a left inguinal hernia was not noted on service entrance in November 1951, such a disorder clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. The subsequent March 1952 medical board evaluation clearly noted a prior left inguinal hernia repair scar, and the Veteran reported two such operations prior to service. Based on this evidence, a doctor in service determined the Veteran's left inguinal hernia pre-existed service. The evidence also shows that the Veteran had "pain and tenderness" in the left inguinal region prior to service and at service entrance. In the absence of any competent evidence to the contrary, the Board finds this evidence of the existence of a left inguinal hernia prior to service is clear and unmistakable. Additionally, although this disorder resulted in sufficient symptomatology for the Veteran to seek treatment, and for surgical repair to be afforded him in April 1952, the Board must conclude this episode was merely a flare-up of this disorder which was subsequently resolved with surgical treatment. Following the 1952 operation, the Veteran did not report further inguinal hernia symptoms or related pain of the groin region. His scar was noted to be well healed on service separation examination in June 1954, and there was no indication on clinical examination of the presence of a hernia at service separation. When comparing the state of the left inguinal hernia repair at service entrance with those at service separation, the evidence shows no changes, no additional symptoms, and no worsening of the underlying repaired hernia. Furthermore, when the Veteran first filed a compensation claim in August 1954, he did not report a inguinal hernia disorder, hydrocele, or related genitourinary symptomatology at that time. The fact that the Veteran did not mention a hernia or hydrocele disorder upon filing his initial compensation claim or for many years thereafter further indicates that he did not have chronic or ongoing symptoms of the inguinal region. This fact, along with all the other evidence, constitutes clear and unmistakable evidence that this inguinal hernia did not undergo a permanent increase in severity in service. In fact, this evidence suggests the opposite, that the Veteran entered service with a left inguinal hernia with "pain and tenderness" in the left inguinal region, which was subsequently surgically repaired during service, and that neither the hernia nor complaints of pain or tenderness were present at service separation in July 1954. Likewise, according to the September 2012 VA medical examination report, the Veteran's hydrocele noted in January 1952 was surgically repaired during the April 1954 hernioplasty, and was no longer present on physical examination in 2012. Even if there were credible evidence that the Veteran now has left inguinal pain and tenderness, such fact would have no tendency to show aggravation during service because the evidence clearly and unmistakably shows that he had "pain and tenderness" in the left inguinal region prior to service and at service entrance. To establish that the same symptom - and just that, a symptom - that preexisted service is present again years after service, without evidence of even increased severity of the symptom, ipso facto, is not evidence of aggravation by service. See Hunt, 1 Vet. App. at 297 ("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"); see also Davis, 276 F.3d at 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). The Court has recognized that such pain alone does not equate to a diagnosis of disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). On the question of aggravation by service, although the Veteran's left inguinal hernia and hydrocele were afforded surgical repair during service, the award of service connection for the surgical scar resulting from such repair may not be service connected in the absence of evidence that the Veteran's inguinal hernia was aggravated; this has not been demonstrated at present. See 38 C.F.R. § 3.306(b)(1). Regarding the question of worsening during service (aggravation by service), the Board finds the Veteran's recent contentions regarding his ongoing genitourinary pain since service, which were made to suggest a permanent worsening of his inguinal hernia and hydrocele during service, are inconsistent with and outweighed by the other lay and medical evidence of record, and are not credible. Upon weighing the evidence, however, the evidence that weighs against the Veteran's current assertions of worsening of inguinal hernia since service, including assertions of pain since service, includes the service treatment record evidence showing no findings or complaints at service separation, the post-service medical histories that do not include complaints, the Veteran's actions after service in filing a claim but not mentioning such symptoms, and the absence of evidence of complaints, findings, or treatment for an inguinal hernia for many years after service; therefore, the Veteran's recent assertions of symptomatology including pain and tenderness in service and since service are not credible. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). It is significant that, at the time the Veteran filed an initial claim for compensation (service connection) in August 1954, he reported headaches and hip and back disorders, but did not claim service connection for residuals of his hernia and hydrocele repair. This action suggests to the Board that there was no pertinent symptomatology of the groin or genitourinary region at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, in this case, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for residuals of his inguinal hernia and hydrocele repair, when viewed in the context of his action regarding another claim for compensation for other disorders, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain residuals of his surgical repair in service and did not have such symptomatology at the time he filed the claim for compensation in 1954. Likewise, a 1955 claim for VA compensation made no mention of a hernia, hydrocele, or genitourinary disorder. The Veteran did not file a claim or seek treatment for any residuals of his hernia and hydrocele repair until 2009, more than 50 years after service separation. This lengthy period without complaint or treatment is evidence that there has not been ongoing symptomatology to suggest that a permanent worsening (aggravation) may have occurred during service, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). This fact also indicates a lack of post-service symptomatology of a genitourinary disorder, and further suggests that this disorder was not aggravated by service. In support of his claim, the Veteran has submitted a November 2009 statement from D.C., M.D., a private physician. Dr. C. examined the Veteran in November 2009 and noted his complaints of tenderness of the left testicle. A scar from a prior hydrocele surgery was also present. Dr. C. stated that the Veteran's left testicle tenderness was at least as likely as not the result of his prior hydrocele surgery many years ago. Dr. C. did not, however, address the gap of time between the Veteran's 1952 surgery in service, and his current symptomatology, to include the lack of reported symptomatology within the record. As already discussed above, the Board does not find that the Veteran has demonstrated ongoing symptomatology following service. To the extent that Dr. C.'s opinion is based on the inaccurate factual assumption of such ongoing symptomatology since service, this opinion is of little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The Board also notes that in July 2010, the Veteran was afforded a VA genitourinary examination. He reported a left inguinal hernia repair in service, with no recurrence of his hernia since that time. He did, however, report chronic pain of the region, to include his left testicle, since that time. On physical examination, the examiner also found no evidence of a current hernia. The examiner also found no evidence of a current scar, or any other significant residuals. Finally, no evidence was found of any current residuals of hydrocele surgery. Thus, insomuch as Dr. C.'s opinion attributes any current symptomatology to a prior hydrocele surgery, that opinion lacks probative value when compared to the remainder of the medical record. Consistent with the findings that the Veteran clearly and unmistakably had left inguinal pain and tenderness at service entrance, the competent evidence also attributes the Veteran's reports of pain to pre-service surgeries rather than in-service surgery. The Veteran next underwent VA examination in September 2012. His claims file was reviewed in conjunction with the examination. The Veteran reported such current symptoms as pain and swelling in the left inguinal region. After review of the file and physical examination of the Veteran, the examiner stated that neither a inguinal hernia nor a hydrocele was currently present. While a hydrocele was noted prior to surgery in 1952, the examiner assessed that this was resolved by that surgery. Regarding the Veteran's current reported pain, the VA examiner opined that this was likely the result of his prior surgeries. Even though the September 2012 examination report suggested the Veteran's current pain was related to his prior inguinal hernia surgeries, this finding is not evidence of aggravation, as the Veteran admitted to pain and tenderness following his two pre-service surgeries, and such symptoms were present at service entrance. In support of his claim, the Veteran has submitted medical treatise excerpts which discuss the general nature of hydroceles and inguinal hernias. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Medical evidence that is speculative, general, inconclusive in nature, or unaccompanied by the opinion of a competent professional cannot support a claim in and of itself. See Sacks v. West, 11 Vet. App. 314 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships). In the present case, the submitted excerpts are general in nature and are of minimal probative value regarding the question of aggravation by service. As such, they carry little probative weight and are outweighed by the more contemporaneous service treatment records, which include medical opinions regarding preexistence and aggravation in this Veteran's case by doctors that were rendered contemporaneous to service, and the more specific September 2012 VA examination report and opinions by a medical examiner based on the evidence unique to this Veteran's case. As analyzed above, clear and unmistakable evidence is of record establishing both that the Veteran's left inguinal hernia pre-existed service and was not aggravated therein. For the aforementioned reasons, the Board finds that the presumption of sound condition of the at service entrance is rebutted by clear and unmistakable (obvious and manifest) evidence that the disorder both pre-existed active duty service and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303 . As the standard is clear and unmistakable evidence to rebut the presumption of sound condition at service entrance, the rule of resolving reasonable doubt in the Veteran's favor is not applicable in this case. ORDER Service connection for residuals of inguinal hernia surgery is denied. Service connection for residuals of hydrocele surgery is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs