Citation Nr: 1316805 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-25 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for right inguinal hernia, to include as due to prostrate cancer status post prostatectomy. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Roanoke, Virginia, regional office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied entitlement to service connection for prostate cancer, erectile dysfunction, and hernia (groin area), secondary to prostate cancer. In a January 2010 rating decision, the RO granted service connection for residuals of prostate cancer, status-post radical retropubic prostatectomy, and service connection for erectile dysfunction. Therefore, the sole issue remaining on appeal is service connection for the right inguinal hernia. In a July 2009 VA Form 9, the Veteran requested a hearing at the Roanoke Regional Office but did not state which kind of hearing he wanted. He provided testimony before a Decision Review Officer (DRO) at the RO in January 2010, the transcript of which is of record. As it was unclear whether this satisfied the Veteran's request, a hearing clarification letter was sent by the Board in July 2012. The letter stated that if a response was not received within 30 days, the Board would assume that he did not want a hearing and proceed accordingly. The Veteran did not respond. This appeal was previously before the Board in September 2012, when it was remanded for additional development. It was returned to the Board in March 2013, at which time it was determined that an expert medical opinion from the Veterans Health Administration was needed. See 38 C.F.R. § 20.901(a) (2012). The opinion was obtained in March 2013. The Veteran was provided with a copy of this opinion. In May 2013 he responded that he did not have any additional evidence to submit and requested that the Board proceed immediately with adjudication of the appeal. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. A right inguinal hernia, was first identified many years after discharge from service, and is not related to a disease or injury in service. 2. The Veteran's right inguinal hernia is not proximately due to, or aggravated by, a service connected disease or disability. CONCLUSION OF LAW A right inguinal hernia was not incurred in or aggravated by service and is not proximately due to or the result of a service connected disease or disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.310(a)-(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA 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. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in March 2008 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist the Veteran in obtaining evidence to substantiate the claim has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. He was afforded VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. The Board found the December 2012, VA medical opinion to be inadequate, because the examiner seemed to relly on the negative service treatment records alone and failed to consider pertinent findings during service, including the Veteran's reports of symptoms. The Board sought to correct these deficiencies by obtaining the VHA opinon. The resulting opinion did consider all of the relevant evidence, including the Veteran's reports and was accompanied by a rationale that considered an accurate history. This opinion is adequate. Nieves-Rodriguez v. Shinseki, 22 Vet. App. 295 (2008). There is no indication that there is any relevant evidence that remains outstanding, and the Board will proceed with consideration of the Veteran's appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hernias are not among the disabilities listed in 38 C.F.R. § 3.309. Further, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede aggravation unless there is medical evidence created prior to the aggravation or created between the time of the aggravation and the current level of disability that shows a baseline for the disability prior to the aggravation. 38 C.F.R. § 3.310(b). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Lay evidence can also be sufficient to establish a nexus between a current disability and a disease or injury in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994), supra (distinguishing between 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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran's service treatment records are negative for complaints relating to or a finding of a hernia. He was seen for either a groin strain or a gram stain in November 1966. The Veteran was also seen for on and off complaints of burning on urination between 1966 and 1969. His prostate was noted to be boggy in October 1969, and to be enlarged in November 1969. He was diagnosed with prostatitis in January 1971. His October 1971 discharge examination showed that the abdomen and viscera to include hernias were normal. However, the discharge examination did note that the Veteran had prostatitis. The post service medical records include the report of a January 1972 VA examination. On the examination report, the word "none" is written under hernia. A special genitourinary examination determined that the Veteran had chronic nonspecific prostatitis, and service connection for prostatitis was established in an August 1972 rating decision. A right inguinal hernia is noted in February 2008 private medical records. These records show that the Veteran was diagnosed with adenocarcinoma of the prostate, and underwent a radical prostatectomy and at the same time the doctor also performed right inguinal hernia repair in February 2008. In a January 2010 rating decision, the RO granted service connection for residuals of prostate cancer, status-post radical retropubic prostatectomy, and service connection for erectile dysfunction. The Veteran underwent a VA examination of his hernia in February 2012. The claims folder was reviewed by the examiner. The Veteran was noted to have been diagnosed with a right inguinal hernia in 2006. He had noticed the hernia himself at that time. Prostate cancer was diagnosed in 2008, and in February 2008 the Veteran underwent prostatectomy and inguinal hernia repair. The examiner noted that the site of the incision for the prostatectomy is different from the site of the incision required to repair the inguinal hernia. The examiner opined that it was less likely than not that the Veteran's hernia was incurred or caused by active service. To support this opinion the examiner stated that there was no documentation that the Veteran had a hernia during service. As for the Veteran's claim that the prostate cancer surgery caused him to develop a hernia, the examiner noted that the hernia location is lateral to the prostate surgery site and is thus not related to the prostate surgery. In addition, the Veteran himself noted that he had the hernia prior to the prostate cancer surgery. The examiner stressed that the site of the incision for the prostatectomy was different from the site of the incision to repair the inguinal hernia. An additional medical opinion was obtained from a doctor with the VHA in March 2013. This doctor stated that he had reviewed the "entire records package" of the Veteran. The doctor opined that it was not as likely as not that the Veteran's right inguinal strain was the result of a disease or injury in service. He added that it was not likely at all the reported prior prostatitis and groin strains caused or aggravated a right inguinal hernia. The earliest medical records of a right inguinal hernia were dated October 2007. The examiner further noted that he was unaware of any data that indicates prior prostatitis is a causative or contributing factor to the development or aggravation of an inguinal hernia. Furthermore, he added that he did not believe from the record that a groin strain from years prior could have caused or aggravated an inguinal hernia. The March 2013 VHA opinion further states that it was not as likely as not that the Veteran's right inguinal hernia was proximately caused by his service connected prostate cancer or prostatitis. The doctor noted that the hernia diagnosis existed prior to the cancer diagnosis. He did not believe there was any possibility that the prostate cancer or prostatitis caused the right inguinal hernia. Furthermore, the location of the hernia was well-removed from the location of the prostate, and the hernia site was also lateral to the prostatectomy incision. Finally, the doctor opined that it was not as likely as not that the right inguinal hernia was aggravated by the service connected prostate cancer or prostatitis. The doctor noted that there was no evidence of this in the record, and that the hernia was described as small at the time of the repair. The repair was incidental to the prostatectomy. He concluded that there was no possibility that the service connected cancer or prostatitis aggravated the hernia. Analysis The record documents that the Veteran had an inguinal hernia and repair proximate to the time of his claim. Hence, a current disability is demonstrated. Although the service treatment records are negative for a hernia, and the Veteran has not reported an inguinal hernia in service, he is service connected for prostate cancer residuals and had prostatitis in service. He contends that the current inguinal hernia is secondary to these conditions. This serves to satisfy the requirement for an inservice event. The remaining question is whether there is a link between the current disability and a service connected disease or disability or between the current disability and a disease or injury in service. The Veteran has not contended that the current inguinal hernia is directly related to a disease or injury in service; and there is no other evidence relating an inguinal hernia to such a disease or event. The Veteran reports that he first noted his hernia in 2006, which is 35 years after his discharge. Accordingly, the evidence is against direct service connection. While the service treatment records do show treatment for prostatitis and a possible groin strain; there is no competent medical evidence that relates the right inguinal hernia that was discovered in 2006 to the conditions treated during service. The March 2013 VHA examiner opined that these conditions did not cause or aggravate the right inguinal hernia. He based this opinion on the state of medical knowledge, which provides no evidence of a relationship between remote prostatitis and the development or aggravation of an inguinal hernia. He also found that location of the hernia, away from the site of the protate and prostate surgery, to weigh against any relationship. Similarly, he did not find support in the the record or medical literature that a groin strain years earleir could have caused or aggravated an inguinal hernia. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The VHA opinion reflected consideration of all pertinent facts, and was accompanied by a detailed rationale that was not equivocal. Hence it is highly probative. The only opinion to the contrary is that of the Veteran's. It would, however, requirem medical expertise to be able to say that the current inguinal hernia and its residuals were caused or aggravated by prostatitis and groin strain many years earlier or by the contemporaneous prostate cancer. These are not matters subject to lay observation. Because the Veteran is not shown to possess the requisite medical expertis, his opinion in this regard is not competent evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Absent competent evidence linking the current disability to service or to a service connected disease or disability, the weight of the evidence is against the claim. Reasonable doubt does not arise and the claim is denied. ORDER Entitlement to service connection for right inguinal hernia, to include as due to prostrate cancer status post prostatectomy, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs