Citation Nr: 1312828	
Decision Date: 04/17/13    Archive Date: 05/02/13

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

M. Taylor, Counsel




INTRODUCTION

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 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 a Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2012, the Veteran appeared at a hearing before a Veterans Law Judge.  A transcript of the hearing is of record. 

In September 2012, the Board remanded the claim for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directive.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

In March 2013, the Veteran submitted additional evidence without waiving the right to have the evidence initially considered by the RO.  As the evidence pertains to the right groin and lymphadenitis, it has no bearing on the current issue, that is, whether a left hernia repair in 2009 was the result of an injury in during service when a cargo net struck the Veteran in the abdomen, and the evidence need not be referred to the RO initial consideration under 38 C.F.R. § 20.1304(c).  The evidence does raise the claim of service connection for lymphadenitis, which is referred to the RO for appropriate action.




FINDING OF FACT

The current left hernia repair is unrelated to an injury, disease, or event, including a blow from a cargo net, in service. 


CONCLUSION OF LAW

The criteria for service connection for a left hernia repair are not met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103 and 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).



The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice by letter in September 2009.  The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service.  

Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf.  The notice included the general provisions for the effective date of a claim and the degree of disability assignable. 

As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim).  

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained the service treatment records as well as VA and private medical records.  




In the remand in September 2012, the Board directed that the Veteran be afforded a VA examination.  The VA examination was subsequently conducted in October 2012.  As the examination report is based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination report and medical opinion are adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110 and 1131. 

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). 

In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110, 1131 as implemented in 38 C.F.R. § 3.303.  


A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service.  38 U.S.C.A. § 1111.  Only such condition as is recorded in examination report is to be considered as noted.  38 C.F.R. § 3.304(b).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b). 

Service connection may also 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). 

Evidentiary Standards 

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a).  The Veteran does not assert that he was in combat and the combat provision of 38 U.S.C.A. § 1154(b) do not apply.



Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b).

Facts 

The service treatment records show that on entrance examination in February 1950 bilateral relaxed [inguinal] rings were noted.  History including a hernia operation at the age of 17 in 1949 [neither the right nor left side was identified].  In January 1953 the Veteran complained of a lump in the area of the right groin of eight months' duration that had become more painful over last three weeks, but had always been easily reducible.  History included a left varicocelectomy in 1949.  


The pertinent finding was a right inguinal hernia and the hernia was repaired with a right inguinal hernioplasty.  On separation examination, the genitourinary evaluation was normal.  

After service in a rating decision in February 1966, the Veteran was granted service connection for the right inguinal hernioplasty.  

Private medical records show that in January 1974 the Veteran had a recurrent right inguinal hernia, which was repaired.  History included a left inguinal hernia repair. 

On VA examination in April 1975, the Veteran had two scars on the right inguinal side.  On VA examination in January 2004, the Veteran complained of stinging pain in the left inguinal area.  The VA examiner reported that the left inguinal was normal.  In April 2009, the Veteran complained of a recurrent right inguinal hernia.  The pertinent findings were a painful right inguinal hernia and a new left inguinal hernia.  The left inguinal hernia was repaired in May 2009. 

In a statement in April 2011, R.H.McC. Jr., MD, a private physician stated that in 1953 while the Veteran was in the Navy the Veteran was hit in the abdomen by a cargo net and the Veteran had immediate abdominal pain and he developed a right inguinal hernia, which was repaired, and in 2008 the Veteran had surgery for a left inguinal hernia.  The private physician expressed the opinion that the abdominal injury in 1953 weakened the abdominal muscles and the injury contributed to the development of the Veteran's hernias. 

In July 2012, the Veteran testified that while aboard ship, replenishing at sea, the ship rolled and a cargo net, loaded with munitions, weighing about 1000 pounds, which he was guiding on to the hanger deck, hit him in the abdomen.  The Veteran stated that he felt a stinging sensation in the abdomen and that about a week later he went to sick call because of the pain and a right inguinal hernia was repaired.   He stated that he also had a left inguinal hernia.  The Veteran stated that he first learned of the left inguinal hernia in 1974 before the surgery for a right inguinal hernia. 


On VA examination in October 2012, the VA examiner reviewed the service treatment records and recounted the Veteran's history, including the Veteran's testimony of an abdominal injury in service, the post-service private and VA records since 1974 for treatment of a recurrent right inguinal hernia and surgery in 2009 for a left inguinal hernia, and the significant facts of case as provided in the Board's request for a medical opinion in its remand in July 2012.  

After a review of a medical description of the common types of hernias, inguinal and ventral, the VA examiner explained that an inguinal hernia develops at the internal ring, the anatomical site where the spermatic cord exits the abdomen, and most often is congenital, even though a hernia may not become obvious until later in life.  The VA examiner stated that the most common etiology of a ventral hernia is a defect in the abdominal wall, and that by clinical history, the Veteran's ventral hernias developed in the abdominal wall as a result of a congenital defect in the Veteran's abdominal wall that presented later in life.  The VA examiner stated that the Veteran's service records noted relaxed inguinal rings and that the Veteran later developed an indirect right inguinal hernia and 20 years later a left inguinal hernia that was repaired in 2009.  

The VA examiner, a physician, then expressed the opinion that although it was likely that the blow from the cargo net during service exacerbated right groin pain, as evidenced by the service treatment records reflecting increased right lower quadrant pain in 1953, there were no complaints of left groin or abdominal pain during service and the injury did not cause any of the hernias that developed in the abdominal wall. 

Analysis

The Veteran asserts that the left hernia repair in May 2009 was the result of an injury sustained during service when a cargo net hit him in the abdomen.  




The service treatment records show that on entrance examination bilateral relaxed [inguinal] rings were noted.  History including a hernia operation at the age of 17 in 1949.  In January 1953, history included a left varicocelectomy in 1949.  

Although relaxed inguinal rings were noted on entrance examination and history included a hernia operation, the history alone on entrance examination was inconclusive as to a preexisting left inguinal hernia as the notation did not include the side of the hernia, either right or left.  

And a left inguinal hernia was not clinically shown.  For this reason the Veteran is presumed to have been in sound condition as to a left inguinal hernia.  38 C.F.R. § 3.304.

Although the service treatment records show that the Veteran had a surgerical repair of a right inguinal hernia, there was no complaint, finding, history, treatment, or diagnosis of a left inguinal hernia.  On the basis of the service treatment records, a left inguinal hernia was not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. 

Although a left inguinal hernia was not affirmatively shown to have been present in service, the Veteran is competent to describe groin pain, which was documented in service and since service, which is in the realm of the Veteran's personal knowledge or experience.  See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). 



As the Veteran had groin pain in service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b), are addressed.  Chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) however do not apply, because an inguinal hernia is not a chronic disease enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a).  See  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases.  38 C.F.R. §§ 3.303(b), 3.309(a)). 

Although a left inguinal hernia was not affirmatively shown to be present in service and as chronicity and continuity of symptomatology do not apply, service connection may still be established based on an initial diagnosis after service under 38 C.F.R. § 3.303(d).

Lay Evidence 

The Veteran as a layperson is competent to describe symptoms of a hernia and to offer testimony about being hit in the abdomen by a cargo net, which are within the realm of the Veteran's personal knowledge, which the Board finds credible.  38 C.F.R. § 3.159; see Layno at 469-71 (lay testimony is competent as to symptoms of an injury, which are within the realm of one's personal knowledge); see Caluza at 511 (credibility determination by the Board).

The next question is whether the Veteran as layperson is competent to diagnosis an inguinal hernia or to offer an opinion on a causal relationship between the post-service left inguinal hernia and an injury during service, the so-called "nexus" requirement.  




The Veteran as a lay person is competent to identify a simple medical condition, that is, one capable of lay observation, to report a contemporaneous medical diagnosis, or to describe symptoms that later support a diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer).  And the Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau).

Whether a left inguinal hernia was present in service or whether an abdominal injury caused the post-service left inguinal hernia are not questions that can be competently answered by the Veteran as a lay person based on mere personal observation as an inguinal hernia falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience.  And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render a diagnosis of an inguinal hernia or to establish medical causation of the hernia.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose or to establish medical causation is not competent evidence). 

Where, as here, there is a question of the diagnosis of an inguinal hernia, which is not capable of lay observation, to the extent the Veteran's lay testimony is offered as proof of the presence of a left inguinal hernia in service the Veteran's lay testimony is not competent evidence, and the Veteran's lay testimony is not admissible as evidence, that is, the Veteran's lay testimony is not to be considered as competent evidence that a left inguinal hernia was present in service. 






As for the Veteran describing a contemporaneous medical diagnosis, there is no competent medical evidence of a left inguinal hernia by history before 1974.  The Veteran has submitted evidence from a medical professional that associates the left inguinal hernia to an injury in service, which will be addressed under the heading "Medical Evidence."

To the extent the Veteran has expressed the opinion that the current left inguinal hernia, repaired in 2009, is related to an abdominal injury service, the Veteran's opinion as a lay person is limited to inferences that are based on personal observation and does not require specialized knowledge, education, or training.  As the Veteran as a lay person is not competent to diagnose an inguinal hernia based on personal observation, any inference based on what is not personally observable cannot be competent lay evidence.  It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between the current left inguinal hernia and an injury or event in service.  

Therefore, the Veteran's lay opinion is not competent evidence and the opinion is not to be considered as favorable evidence on the question of the relationship between the current left inguinal hernia and an injury or event is service 

As the Veteran's lay evidence is not competent evidence on the questions of a diagnosis or of the cause of a left inguinal hernia, the Board need not reach the question of credibility.

As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis or of causation or etiology, the Board looks to the medical evidence. 







Medical Evidence

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. 

The competent medical evidence of record consists of the opinions of private and VA medical professionals, who are qualified through education, training, or experience to diagnose and to offer a medical opinion. 

In this case there is medical evidence in favor of the claim and medical evidence against the claim. 

The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, whether the opinion is the product of reliable medical principles, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  And a review of pertinent medical literature may also furnish information relevant to the question of causation.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  A mere conclusionary opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against a contrary opinion.  Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007).

The evidence in favor of the claim consists of the opinion of R.H.McC. Jr., MD, a private physician, who expressed the opinion that the Veteran's abdominal injury in 1953 weakened the abdominal muscles and the injury contributed to the development of the Veteran's hernias.  The private physician relied on the history provided by the Veteran that he was hit in the abdomen by a cargo net and he had abdominal pain, resulting in a right inguinal hernia, which was repaired.  



See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (the Board cannot reject the medical evidence solely because it is based on a history related by the Veteran, the Board must evaluate the credibility and weight of the history upon which the medical opinion is predicated); see Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran).  And the Board has found that the Veteran's description of the abdominal injury is credible. 

Except for the left inguinal hernia repair in 2008 [sic], the medical opinion does not address significant facts of the case.  For example, in January 1953, the Veteran complained of a lump in the area of the right groin of eight months' duration that had become more painful over a recent three week period and the pertinent finding was a right inguinal hernia.  There was no reference to an abdominal injury in the previous eight months or in the three weeks of increased pain or to a left inguinal hernia.  After service, in January 1974, although history included a left inguinal hernia repair. In April 2009, the Veteran complained of a recurrent right inguinal hernia.  While there was a history of a left hernia repair, there was no evidence of a left inguinal hernia on VA examination 2004 and in April 2009 the left inguinal hernia was described as new and there was no evidence of scarring from a previous repair when the hernia was repaired.

The medical opinion therefore relies on an incomplete history and there is no discussion of the medical principles applied to the facts of the case to reach the conclusion submitted in the opinion.  The medical opinion at best is a conclusion that fails to provide sufficient detail for the Board to make a fully informed decision on whether the post-service left inguinal hernia was incurred in service.  For this reason, the Board finds the medical opinion is not persuasive and the opinion has limited probative value on a material issue of fact, namely, whether the post-service left inguinal hernia was incurred in service. 





The evidence against the claim consists of the opinion of the VA examination in October 2012.  The VA examiner reviewed the service treatment records and recounted the Veteran's history, including the Veteran's testimony of an abdominal injury in service, the post-service private and VA records since 1974 for treatment of a recurrent right inguinal hernia and surgery in 2009 for a left inguinal hernia, and the significant facts of case as provided in the Board's request for a medical opinion in its remand in July 2012.  

After a review of the literature describing the common types of hernias, including an inguinal hernia, the VA examiner explained that the most common etiology of an inguinal hernia is a defect in the abdominal wall and that by clinical history the Veteran's hernias developed in the abdominal wall as a result of a defect that presented later in life.  The VA examiner stated that the Veteran developed a left inguinal hernia at least 20 years later service.  

The VA examiner expressed the opinion that although it was likely that the blow from the cargo net during service exacerbated right groin pain, as evidenced by the service treatment records, and for which service connection has been granted for a right inguinal hernia, there were no complaints of left groin or abdominal pain during service and the injury did not cause any of the hernias that developed in the abdominal wall.  

Considering the merits of the analysis and the details of the opinions, the Board finds that the opinion of the VA examiner, which was based on medical analysis applied to the significant facts of case, including a review of the medical literature, is persuasive medical evidence against the claim and outweighs the favorable medical opinion.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b). 

      (The Order follows on the next page.).






ORDER

Service connection for a left hernia repair is denied.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs