Citation Nr: 1326138 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 08-37 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a hernia disability, status post right inguinal hernia repair. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1991 to December 1991 and December 1998 to December 2005 with additional service in the United States Marine Corps Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in February 2008 by the Salt Lake City, Utah, Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Board remanded the Veteran's claim on appeal for further evidentiary development. As will be further discussed below, the Board's January 2012 remand directives have been substantially completed, and the Veteran's claim has been returned to the Board. During the pendency of the Veteran's claim on appeal, he also perfected appeals for the issues of (1) entitlement to service connection for migraine headaches and (2) entitlement to service connection for tinnitus. However, in January 2012, the Board granted his migraine headaches claim and remanded his tinnitus claim for further development. The Board's allowance of his migraine headaches claim was implemented by the VA Appeals Management Center (AMC) in a January 2012 rating decision; a 10 percent evaluation was assigned, effective from October 15, 2007. Subsequently, in a March 2012 rating decision, the AMC established service connection for tinnitus; a 10 percent evaluation was assigned, effective from October 1, 2007. To date, the Veteran has not expressed disagreement with the assigned evaluations or effective dates of these awards. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, those matters have been resolved and are no longer in appellate status. Preliminary Note In March 2013, after the last adjudication of the Veteran's claim in a March 2012 Supplemental Statement of the Case, additional was added to the Veteran's claims file which was unaccompanied by a waiver of initial consideration of such by the RO. Under 38 C.F.R. § 20.1304(c), any pertinent evidence submitted without a waiver must be referred to the RO. This regulation specifically states that "[e]vidence is not pertinent it if does not relate to or have a bearing on the appellate issue or issues." In this case, although the Board finds that this additional evidence, a July 2010 Periodic Health Assessment, is not cumulative or redundant of the previous evidence of record, this evidence is not pertinent to the claim on appeal. Specifically, there are no subjective complaints or objective reports of symptomatology which may be attributable to the Veteran's inguinal hernia repair. In light of above, a remand for initial review of this evidence by the RO would serve no useful purpose and would only amount to additional, unnecessary delay in the adjudication of the Veteran's claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Because this evidence is not pertinent to the claim decided herein, the Veteran is not prejudiced by the Board actions in this matter. Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board makes a determination, it must consider whether the Veteran has been prejudiced thereby). FINDINGS OF FACT 1. The Veteran's October 1990 service entrance examination notes that he underwent right inguinal repair in June 1990; however, this examination report does not reflect a diagnosis of a chronic hernia disability. 2. The Veteran's current hernia disability, diagnosed as inguinodynia, clearly and unmistakably preexisted service. 3. The Veteran's inguinodynia clearly and unmistakably was not aggravated by service any incident of service. CONCLUSION OF LAW The criteria for service connection for inguinodynia are not met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A November 2007 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained. In the January 2012 remand, the Board directed that updated VA treatment records should be obtained and associated with the record. This was accomplished by the AMC in March 2012. As such, the Board's prior remand directive concerning the procurement of updated VA treatment records has been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA) or that he receives private treatment for his hernia disability. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). VA examinations were conducted in January 2008 and February 2012 in connection with the present claim, and the reports of these examinations are associated with the claims file. As noted by the Board in the January 2012 remand, the January 2012 VA examination is inadequate for the purpose of adjudicating the Veteran's claim to the extent that the examiner did not provide an opinion addressing whether the Veteran's preexisting hernia disability was aggravated by his period of service. Accordingly, the Board directed in January 2012 that he be provided another VA examination, at which time the examiner would offer an opinion addressing this matter. As will be discussed further below, the February 2012 VA examination report reflects that diagnoses and opinions which are congruent with the other evidence of record were rendered following a physical examination of the Veteran and a review of the record. All offered opinions are accompanied by a complete rationale. For these reasons, the Board concludes that the February 2012 VA examination is adequate for the purpose of adjudicating the Veteran's claim, and thus, the Board's January 2012 remand directive with respect to this matter has been substantially completed. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47. There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the claimant's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the claimant is not entitled to service- connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. A preexisting injury or disease will be considered to have been aggravated where there is an increased in severity during service unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 C.F.R. § 3.306(a) (2012). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preserves disability underwent and increase in severity during service. 38 C.F.R. § 3.306(b) (2012). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2012). Because the October 1990 service entrance examination shows no objective clinical findings of a hernia disability, the presumption of soundness attaches. 38 U.S.C.A. § 1111, 38 C.F.R. § 3.304(b) (1). However, as stated in Wagner, the presumption of soundness may be rebutted by clear and unmistakable evidence that the claimant's disability was both preexisting and not aggravated by service. After thorough review, the Board finds that the evidence is clear and unmistakable in establishing that the Veteran's inguinodynia preexisted service. Although the October 1990 service entrance examination did not find evidence of a chronic hernia disability, the report noted the June 1990 right inguinal repair. Further, although the Veteran's service treatment records do not reflect treatment for hernia pain during service, the Veteran asserts that he reported it during his physicals, and that the pain has pain continues to the present time, occurring after physical activities and sex. Moreover, the January 2008 and February 2012 clinicians who conducted the VA examinations provided in connection with this matter opined that the Veteran's current hernia disability, diagnosed as inguinodynia, existed prior to the Veteran's service. Because there is clear and unmistakable evidence that the Veteran's hernia disability existed prior to his entrance to service, the question before the Board is whether this preexisting disability was clearly and unmistakably not aggravated by any incident of service. As noted above, the January 2008 VA examiner did not provide an opinion addressing this matter. However, in the February 2012 VA examination report, the clinician opined that the Veteran's preexisting and current hernia disability, inguinodynia, was clearly and unmistakably not aggravated beyond its natural progression by an in-service illness, injury or event. In providing this opinion, the examiner noted that the Veteran had not suffered a hernia recurrence at any time since the June 1990 repair surgery, and, while the Veteran claimed he experienced lower abdominal pain upon exertion during and since his service, he had not been treated in service, and there was no evidence other than the Veteran's statements that the hernia pain worsened over time and no evidence of nerve involvement or damage secondary due to an in-service event, illness or injury. The examiner further noted that, while the Veteran's reports of in-service inguinodynia are credible, the provided opinion was based on general medical principles. The Board observes the Veteran's assertions that his preexisting inguinodynia was aggravated beyond the normal progression of the disability by in-service exertion. However, the Veteran's statements reflect that his hernia pain occurs after physical activities and sex. The Court has held that aggravation does not exist when there is a temporary worsening in symptoms, but the condition itself does not worsen, and the evidence does not establish a worsening of the preexisting condition. Hunt v. Derwinski, 1 Vet. App. 292 (1991). To this extent, the most probative evidence reflects that the aggravation of the Veteran's hernia pain is temporary in nature. Again, the only evidence that the preexisting condition was aggravated by military service is the Veteran's argument. The Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Here, the Veteran asserts that his preexisting hernia pain, inguinodynia, was aggravated beyond the normal progression of the disease by an incident of service. However, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, whether the Veteran's preexisting disability was aggravated beyond the normal progression of the disease is not the type of medical matter which the Veteran can competently and credibly address without medical expertise. Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1372. Thus, the Board concludes that, although the Veteran is competent to report symptoms, his statements as to permanent worsening of his inguinodynia beyond the normal progression of the condition due to an in-service incident do not constitute competent evidence. Furthermore, the Board finds that the February 2012 VA examiner's opinion concerning this matter to be more persuasive than the Veteran's statements. The VA examiner conducted a physical examination of the Veteran, reviewed the entire claims file and medical history of the Veteran, and provided an appropriate opinion with a supporting rationale which is congruent with the balance of the medical evidence of record. Thus, the Board finds that the VA examiner's opinion is the only competent and persuasive evidence with respect to the matter of permanent aggravation of his preexisting hernia disability. The evidence clearly and unmistakably establishes that the Veteran's disability pre-existed service, and clearly and unmistakably shows that it was not aggravated by service. Therefore, service connection is not warranted. ORDER Entitlement to service connection for a hernia disability, status post right inguinal hernia repair, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs