Citation Nr: 1318941 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 07-18 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left inguinal hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1976 to April 1983. He also served in the United Stated Army Reserves for an unspecified period beginning in or around February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his May 2007 substantive appeal and in a June 2007 statement, the Veteran requested a Travel Board hearing. This hearing was scheduled for October 2008, but the Veteran requested that it be cancelled before it was held. However, a Decision Review Officer (DRO) hearing regarding this matter was held in November 2007. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board in February 2011 at which time it was remanded for further development and for due process reasons. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDING OF FACT The Veteran currently has residuals of a left inguinal hernia that are related to his active military service. CONCLUSION OF LAW The criteria for service connection for a left inguinal hernia, and residuals thereof, have been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In view of the favorable disposition below, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to the Veteran's claim are rendered moot. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. 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) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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) (2012). Lay 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 professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In this case, on June 2011 VA digestive conditions examination the examiner diagnosed residuals of left inguinal hernia repair with pain. Because a current left inguinal hernia disability has been established, the Board will next consider whether the evidentiary record supports in-service incurrence. The Veteran contends that he sustained a hernia on his left side during active duty service. Specifically, he indicated that he tore his stomach muscle while changing a flat tire on a tractor trailer truck at Fort Bliss, Texas, in January 1982. The only available service treatment record is a February 1990 QUAD report of medical history from the Army Reserves which documents a rupture/hernia. VA treatment records include an April 2006 report which reflects a long history of an inguinal hernia and indicates that the Veteran underwent a reduction and repair of the left inguinal scrotal hernia in September 2006 during his incarceration. In May 2007, he underwent a bilateral laparoscopic inguinal hernia repair with mesh. During the Veteran's hearing before a DRO in November 2007, the Veteran testified that he did not have any abdominal pain or injuries prior to his service. During service, his military occupational specialty was 64 Charlie Heavy Equipment Operator, the duties of which included driving and performing truck maintenance. While changing a flat he tore a muscle in his abdomen. Three days later, he went to sick call where he was told that he pulled a muscle and was advised to take it easy. He was not treated for the hernia and the hernia was not examined on ETS examination in April 1983. The Veteran testified that he underwent an examination upon joining the Army Reserves in 1990 which revealed a hernia. He testified that he underwent two hernia surgeries in 2006, one in the department of corrections and the other at a VA hospital, and stated that he experienced residuals of the hernia. In a February 2008 letter, the Veteran's primary care physician Dr. Zeyas indicated a history of a left-sided hernia that the Veteran acquired while lifting a flat tire off of a sixteen-speed international tractor trailer in January 1983 while stationed at Fort Bliss, Texas. At that time, the Veteran complained of a rip inside the left inguinal area to an Army physician who did not examine him, told him that he pulled a muscle, and advised him to take it easy. Upon joining the Army Reserves in 1990, a physical examination revealed a left inguinal hernia. On examination, Dr. Zeyas found a lump in the inguinal area and opined that the left inguinal hernia was caused by heavy lifting of an Army vehicle tire and mounting it on the tractor trailer. He further opined that the hernia was caused by an in-service event in 1983 based on the findings made by surgeons in 2006 which indicated a long protracted untreated hernia. VA treatment records include a June 2010 CT report which indicates that a scan of the abdomen and pelvis was negative for a ventral or inguinal hernia. Pursuant to the Board's February 2011 remand, the Veteran underwent a VA digestive conditions examination in June 2011 at which time the examiner noted that a 2010 CT scan was negative for a recurrent hernia. The examiner diagnosed residuals of left inguinal hernia repair with pain, but failed to provide any opinion as to whether those residuals were related to his service. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA. In this regard, the Board also accepts that the Veteran is competent to report a left inguinal hernia during and after his service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). In this case, the only competent opinion of record is that of private physician Dr. Zeyas who opined that the Veteran's left inguinal hernia is related to his service. There is no contrary opinion of record. In addition, the Veteran is competent to observe the presence of a left inguinal hernia during and after his service and the Board finds that his credible and consistent account of in-service occurrence of a hernia, to be probative evidence in support of his claim. In summary, the Board, in reviewing the record in its entirety, finds that the lay and medical evidence has demonstrated that the Veteran's left inguinal hernia and residuals thereof are etiologically related to his service. Accordingly, service connection for a left inguinal hernia is warranted. The claim, therefore, is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a left inguinal hernia, and residuals thereof, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs