Citation Nr: 1322050 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-32 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral inguinal hernia status post mesh repair. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1981 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a bilateral hernia status post mesh repair. The Veteran timely appealed that decision. This case was before the Board in October 2011, when it was remanded for further development, to include obtaining a VA examination. That examination was performed in December 2011. The development having been completed, the case has been returned to the Board for further appellate review at this time. The Board has reviewed the claims file and finds that its October 2011 remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). FINDINGS OF FACT Resolving all doubt in the Veteran's favor, bilateral inguinal hernia had their clinical onset in service. CONCLUSION OF LAW The criteria establishing service connection for a bilateral inguinal hernia status post mesh repair are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable decision, discussed below, as to the issue of service connection for a bilateral inguinal hernia, no further discussion as to VCAA is required at this time. This decision represents a fully favorable grant of benefits sought on appeal. The Board has reviewed the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 evidence of 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); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 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. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[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 professional." 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"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 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")). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, 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). On appeal, the Veteran has averred that his bilateral inguinal hernia and subsequent mesh repair is the result of his military service, including many strenuous activities involved with his many years of service, such as exercising, wearing a gun holster, and weightlifting. The Veteran also stated that he suffered from right- and left-sided pain and symptomatology in service, which continued within the one-year period following his discharge from service and which was eventually diagnosed as a bilateral inguinal hernia. Turning to the evidence of record, the Veteran's service treatment records document a September 1993 treatment record reflecting a questionable strained abdominal muscle; he was treated for a pulled left groin muscle at that time. Subsequent treatment records, including numerous examination and pre- and post-deployment assessments, do not demonstrate any abdominal or groin complaints or treatment with regards to any pain or hernia-type symptomatology, or diagnosis of same. In fact, on separation examination in July 2005, the Veteran's abdomen was soft, non-tender, without abdominal bruit, normoactive bowel sounds, and no evidence of flank pain. No hernia, right- or left-sided, was noted at that time. Other evidence of record demonstrates that the Veteran had weightlifting as a hobby during military service. The Veteran was discharged from military service on July 31, 2005. The first evidence of a right inguinal hernia was noted in a May 2006 post-service examination. In a July 2006 treatment record, the Veteran was seen for a possible right inguinal hernia. The Veteran reported having intermittent right groin pain, exacerbated by running, for the past several months as well as a lump in his left groin, which gets bigger after he works out then goes down afterwards. He reported discomfort on the left side as well. After examination, the Veteran was diagnosed with a left reducible inguinal hernia and right groin pain of unclear etiology. He was referred for an abdominal CT scan, performed the same day, which demonstrated a bilateral inguinal hernia. The Veteran underwent a mesh repair of his bilateral inguinal hernia in September 2006. The Veteran underwent a VA examination in December 2011, at which time the examiner noted that he was diagnosed with a bilateral inguinal hernia in 2006. The examiner further noted that the Veteran complained of side/pelvic pain for 3 years prior to retirement from service. He also noted that since retirement from service, the Veteran has worked in a security position which has not required any heavy lifting except for during training activities and exercising. Following examination, the examiner opined that the Veteran's bilateral inguinal hernia was at least as likely as not related to his military service and activities therein. He noted that the examination and referral to a surgeon for the bilateral hernias occurred within 12 months of discharge from service. There was no report by the Veteran or evidence in the medical record of an intercurrent injury/inciting event that would have been indicative of causing an inguinal hernia. Thus, the examiner concluded that it was reasonable to opine that the event was as likely as not attributable to service events. In light of the above evidence, the Board finds that service connection for bilateral inguinal hernia with mesh repair is warranted. First, the Board notes that the Veteran has been diagnosed with a bilateral inguinal hernia shortly after his discharge from more than twenty-four years of service; he was referred for a mesh repair of that bilateral inguinal hernia in September 2006. There is evidence of record that the Veteran weightlifted as a hobby during military service; the Board additionally notes that exercising and other physically strenuous activities are involved in the normal day-to-day training and duties of military personnel, to include activities. The Veteran also described right and left sided pain that began in service. Thus, the Board finds that the Veteran's lay evidence is satisfactory and of the types, places and circumstances consistent with his military service. See 38 U.S.C.A. § 1154(a) (West 2002). Thus, the Board additionally concedes an in-service event. The Veteran has averred that his hernia began in service and was only detected after military service. The evidence of record, particularly the December 2011 examiner's opinion, agrees with the Veteran's assessment. The examiner noted that there was a diagnosis of a bilateral inguinal hernia and referral for repair within a year of discharge from service, and that there was no evidence or report of an intercurrent injury or inciting event between the time of discharge and the time of diagnosis. In fact, the Veteran reported continuous although intermittent pain in his side and pelvic/groin area after discharge from service and the examiner noted that those reports began during service-3 years prior to discharge therefrom. The Veteran's reports and the evidence of record are consistent with this evidence of record and the Board finds that evidence to be competent, credible and highly probative in this case. While no hernia pathology was noted on the most recent VA examination, it is clear that hernias were present and received surgical attention following active duty. The lack of current symptoms would affect the rating assigned, but would not preclude a grant of service connection for disability that has been attributable to active duty. Accordingly, the Board finds that the preponderance of the evidence in this case demonstrates that it was as least as likely as not that the event triggering the bilateral inguinal hernia was during service. Therefore, an award of service connection in this case is warranted on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a bilateral inguinal hernia status post mesh repair is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs