Citation Nr: 1325244 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-08 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a ventral hernia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to March 1974, and May 1992 to May 1992, with additional service in the Air Force Reserves and National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran submitted a Notice of Disagreement (NOD) with this determination in June 2008, and perfected his appeal in March 2009. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claims on appeal. These records have been reviewed and considered by the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of service connection for a ventral hernia. The Veteran contends that his recurrent hernia condition had his onset during his active duty service, as well as service in the Reserves and National Guard. With specific regard to National Guard and Reserve service, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated while performing, active duty for training (ACDUTRA). With respect to time periods of inactive duty training (INACDUTRA), service connection may only be granted for injury so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). The available personnel records confirm that the Veteran served in the Air Force Reserves and the National Guard of California. The record contains the Veteran's Retirement Points History Statement covering the entirety of the Veteran's National Guard service. While there is a breakdown of the dates that the Veteran served, it only notes the total points of active duty for each time period, but not the specific dates the Veteran was on active duty or ACDUTRA during those time periods. Therefore, it remains unclear to the Board when the Veteran was on periods of ACDUTRA. Therefore, in order to fully and fairly consider the Veteran's appeal, an attempt must be made to confirm all periods of active duty, ACDUTRA, and INACDUTRA. Additionally, VA and private treatment records show a diagnosis of and treatment for ventral hernias. Treatment records show the Veteran was diagnosed with a hernia and underwent hernia repairs while he was in the National Guard in March 1990, November 1990, April 1993, September 1994, and October 1994. Additionally, an August 2007 Radiology Report noted that the Veteran had a ventral hernia in the midline above the umbilicus. VA records show that the Veteran underwent another ventral hernia repair in June 2008. VA records show an ongoing diagnosis of and treatment for recurrent hernias. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The VA has neither afforded the Veteran an examination nor solicited medical opinions as to the onset and/or etiology of the Veteran's recurrent hernia condition. Although the Veteran has been seeking treatment from the VA for this condition, it remains unclear to the Board whether the Veteran's recurrent ventral hernia had its onset in service or is related to any aspect of his military service. A medical opinion regarding an etiology of the Veteran's recurring hernia is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1) Ensure that the Veteran's VA treatment records are up to date in the claims file, to include the Virtual claims file. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2) Contact the National Adjutants General of California, the National Personnel Records Center, and/or any other appropriate agency, and confirm all of the Veteran's Air Force Reserves and Army National Guard service dates, specifically noting all periods of active duty, ACDUTRA, and INACDUTRA from 1974 to 1999. If these records are not available, a negative reply must be provided. Additionally, if a negative reply is received, the Veteran must be notified and given the opportunity to submit those records. 3) After the foregoing, schedule the Veteran for a VA examination to determine whether his recurrent ventral hernia is related to his active service. The claims file and a copy of this remand must be reviewed by the examiner, and the examination report should reflect that the claims file was reviewed. All indicated testing must be conducted. The Veteran's periods of active duty and active duty for training should be provided to the examiner. The examiner should address the following: A. Is it at least as likely as not (50 percent or greater probability) that the Veteran's current ventral hernia had its onset in service or is related to any in-service disease, event, or injury, to include periods of active duty for training. B. If the Veteran's ventral hernia is found to NOT have had its onset while on active duty or during a period of active duty for training, the examiner should provide an opinion as to whether it was at least as likely as not (50 percent or greater probability) that the evidence of record demonstrates that the Veteran's pre-existing ventral hernia was permanently aggravated (increased in severity) during active duty service or any period of active duty for training, and if so, whether such worsening constituted either the natural progression of the disorder, OR whether such worsening constituted chronic aggravation due to service. The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must review and discuss the Veteran's service treatment records, VA treatment records, private treatment records, the Veteran's lay statements, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. (4) Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). (5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, readjudicate the Veteran's claim. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should 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 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). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).