Citation Nr: 1317575 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-15 169A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for residuals of a left inguinal hernia. 2. Entitlement to a disability evaluation in excess of 10 percent for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1972 to January 1975, from January 2004 to April 2005, and from May 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In an October 2008 VA Form 9, the Veteran checked the option box requesting a BVA hearing. However, in a subsequent May 2009 VA Form 9, he checked the option stating, "I do not want a BVA hearing." Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). The Veteran's May 2009 VA Form 9 also perfected an appeal for entitlement to service connection for a psychiatric disorder. In a subsequent May 2009 rating decision, the RO granted service connection for posttraumatic stress disorder. Therefore that issue is no longer on appeal. The issue of entitlement to a disability evaluation in excess of 10 percent for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has residuals of a left inguinal hernia that began during active service or are related to an incident of service. CONCLUSION OF LAW The Veteran's residuals of a left inguinal hernia were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In October 2007, Dr. J. H., a private physician, diagnosed a left inguinal hernia. In November 2007, Dr. W. S., a private surgeon, performed a left inguinal herniorrhaphy for the Veteran's symptomatic left inguinal hernia. At his November 2007 follow up appointment, Dr. W. S. noted that the Veteran had minimal swelling around his incision. Dr. W. S. recommended that the Veteran follow lifting restrictions until January 2008. At his January 2008 VA general medical examination, the examiner noted that the Veteran had a hernia repair operation with good results and that "he report[ed] only intermittent burning" that lasted for a few minutes at a time. The Veteran has a current disability. Hickson, 12 Vet. App. at 253. The Veteran separated from service in September 2007. He reported left groin pain to Dr. J. H. within one month after separation. During his November 2007 pre-surgery consult with Dr. W. S., the Veteran reported having symptoms of his left inguinal hernia over the previous year, which would indicate that he experienced symptoms while on active duty during his period of service from May 2006 to September 2007. In his operation report, Dr. W. S. noted that the Veteran had experienced a symptomatic left inguinal hernia "for some time." At his January 2008 VA general medical examination, he reported the onset of left groin pain in June 2006, while on active duty. He stated that it continued for the remainder of his period of service and that he saw a field medic for a bulge in his left groin, but no action was taken. He reported that he had it surgically repaired in November 2007. The Veteran is competent to describe observable symptoms such as groin pain. Layno v. Brown, 6 Vet. App. 465 (1994). He sought treatment for his symptoms within one month of separation and reported that he had symptoms during the previous year. The Board finds his statements credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran's lay statements provide probative evidence that his inguinal hernia manifested during service. Hickson, 12 Vet. App. at 253. Further Board finds that the medical evidence of record, especially the statements from Dr. W. S., show that the Veteran's left inguinal hernia manifested in service. There is no evidence to the contrary. Affording the Veteran the benefit of the doubt, service connection for a left inguinal hernia is warranted under 38 C.F.R. § 3.303(d). See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Given the granting of the benefit, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the claimant. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). ORDER Service connection for residuals of a left inguinal hernia is granted. REMAND While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). In this case, the Veteran underwent a VA spine examination in May 2008, five years ago. The examination is too old to show the Veteran's current disability picture. None of the medical evidence of record since the May 2008 VA examination provides sufficient information for the Board to apply the rating criteria for the Veteran's back disability. Lastly, in June 2008, the Veteran reported a worsening of low back stiffness to Dr. S. S., a private chiropractor. Dr. S. S. noted that the Veteran was "currently experiencing an exacerbation of symptoms." Therefore, a new examination is necessary for the Board to adjudicate the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician. The purpose of the examination is to determine the current severity of the Veteran's low back disability, and its impact on his employability and daily activities. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must specifically: ii) Provide the Veteran's range of motion of his thoracolumbar spine, expressed in degrees. Repetitive motion testing should be conducted and the examiner should note, in degrees, any decrease of range of motion after repetitive use. ii) Determine whether the thoracolumbar spine exhibits weakened movement, excess fatigability with use, incoordination, painful motion, pain with use, and express this in terms of additional degrees of limitation of motion. iii) Determine whether there are any associated objective neurologic abnormalities including radiculopathy, bowel impairment, or bladder impairment. d) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue as noted above. 2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs