Citation Nr: 1327741 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 07-29 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a stomach muscle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board, among other things, remanded the issue on appeal for additional development in June 2010 and May 2012. In July 2009, the Veteran testified before a Decision Review Officer (DRO) at the RO. In February 2010, he testified before the undersigned Acting Veterans Law Judge during a hearing held at the RO. Transcripts of both hearings have been associated with the claims file. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, a stomach muscle disability manifest as a ventral hernia is likely related to service. 2. The preponderance of the evidence of record demonstrates that there is no evidence of a hiatal hernia or gastrointestinal disorders in service, within the first year of discharge, or for many years after service. CONCLUSION OF LAW The criteria for service connection for a stomach muscle disability manifest as a ventral hernia have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The development requested upon remand has been substantially completed. Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for granting the Veteran's service connection claim for a stomach muscle disability without detriment to his due process rights. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including a gastric or duodenal ulcer, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Generally, in order to prevail on the issue of service connection on the merits, 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 evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). While a peptic ulcer (gastric or duodenal) is a chronic disease listed under 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) would be applicable, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), ventral hernias, hiatal hernias, and other gastrointestinal disorders are not considered chronic diseases under Walker and 38 C.F.R. § 3.303(b). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis The Veteran seeks service connection for a stomach muscle disability. He contends in written statements and testimony that he was required during service to participate in a drill in which he would have to pick up a mortar base plate, run 50 yards, put it down, and put it together ready for firing. He asserted that he pulled something in his stomach while attempting to pull a base plate out of the ground. He also contended that this base plate either fell on his stomach at one point or that a heavy piece of equipment recoiled impacting his lower abdomen. Service treatment records are negative for any complaints of, or treatment for, any hernias or ulcers. His August 1963 discharge examination revealed no abnormalities of the abdomen and viscera; however, he reported having stomach, liver, or intestine trouble on his August 1963 Report of Medical History upon separation from service. Post-service, no medical records reflect treatment for a ventral hernia. However, they do note various gastrointestinal complaints. For example, a March 1999 VA medical record noted complaints of dyspepsia and a sour stomach. It was noted that current medical problems included gastroesophageal disease (GERD) and constipation. A September 1999 VA medical record noted the Veteran had nausea and epigastric pain. Diagnoses were GERD and vertigo. A March 2000 VA medical record noted that the Veteran had a history of ulcers and that since he started taking Indocin he had some abdominal complaints. During an October 2000 annual nursing screening the Veteran was told to take Tylenol for his stomach discomfort. December 2002 VA treatment records indicated that results of the Veteran's X-ray studies of the chest and abdomen showed gas in the colon and small intestine. An urologist report indicated that the Veteran's complaint of abdominal pain might be related to bilateral renal stones which did not present an obstruction. A March 2004 VA medical record noted a history of intermittent abdominal pain when the Veteran was referred to surgery for consultation regarding possible colon diverticulosis. He said that the stomach discomfort was usually located at the lower abdomen, more in the midline area. In a November 2004 VA medical record, the Veteran was noted as having right flank pains. A separate report at that time noted a history of a gastric ulcer. A January 2005 VA radiology report noted he had severe esophageal reflux, a small hiatal hernia, antral gastritis, mild duodenitis, and no peptic ulcer disease. The Veteran underwent a VA examination in June 2005. Examination noted a ventral hernia that measured six inches by four inches and is easily reduced. This ventral hernia was not painful. Muscles and fascia of the abdominal wall were normal. The examiner provided diagnoses of a hiatal hernia with reflux and a ventral hernia that was not painful and is easily reduced. An opinion regarding the etiology of either disorder was not provided. In a February 2006 VA treatment record, the Veteran was noted as having a history of a hiatal hernia and GERD. A May 2006 VA treatment record noted the Veteran had a prior history of diverticulosis. A December 2006 computerized tomography scan showed two views of the abdomen, which was non-specific without abnormal masses or calcifications. Bilateral renal stones were also seen. May 2009 VA medical records noted complaints of abdominal pain. During his July 2009 RO hearing, the Veteran testified that his job in service was as a gunner on a 106 recoilless rifle and an 81mm mortar. He said that he injured his stomach when pulling on a mortar plate. He was lying across the trailer tongue on a three-quarter ton truck trying to remove a mortar plate when he felt that he had pulled something in his stomach. He did not go to sick call. He also testified that post-service a doctor wanted to do exploratory surgery, but he declined. During his February 2010 Board hearing, the Veteran testified that his job in service was with heavy weapons. He said that he injured his stomach muscle when removing a mortar base plate. He said that he was lying across a trailer tongue pulling at the plate when something in his stomach pulled. He conceded that he never went to sick call and was not diagnosed with a specific disability related to his stomach while in service. About three to four months after discharge from service, the Veteran said that a doctor told him about exploratory surgery but that he opted not to undergo surgery. The Veteran underwent a VA examination in October 2010. The examiner reviewed the claims file and noted that the Veteran reported he never sought active duty medical care for any stomach-related disorder. It was also noted that the Veteran reported that, in the early 1960's, in the heavy weapons infantry, there was a recoil incident with a heavy piece of equipment impacting his lower abdomen. From then on, he had a sensation of a tear of the lower abdominal wall. There was never a bulge. There was no active duty care. Soon after discharge a civilian surgeon wanted to do an exploratory laparotomy to evaluate the condition. The Veteran reported subjective complaints of a vague chronic intermittent pain of the midline of the lower abdomen, worsened by increased intraabdominal pressure and physical activity. He was asymptomatic at rest. He wore an elastic belt low on the abdomen for support, especially with prolonged driving. He had never been issued an abdominal support device. There were no periods of incapacitation due to gastrointestinal disease. The stomach wall/muscle condition caused pain, decreased stamina, and a mild decrease in his ability to lift and carry in the workplace. Upon examination, the Veteran was noted as having no clinical or imaging evidence of abdominal wall muscle disease. The examiner found that although the Veteran had a specific and believable history of abdominal wall muscle injury, there was no current clinical or imaging evidence of abdominal wall muscle disability. Therefore, it was found that an opinion was not warranted. The Veteran underwent a VA examination in June 2012. The examiner reported that the Veteran had a ventral hernia diagnosed in January 2005. She noted that during service the Veteran reported repeatedly lifting and moving mortar base plates. During one such exercise, while bending over and pulling a plate he felt an ice like sensation tearing across his stomach. Ever since, he said, he had to undo his pants when driving in order to get comfortable. He also told the examiner that his doctor wanted to perform surgery but that the Veteran did not want to be cut. On examination, a small persistent ventral hernia was noted. The examiner commented that it seemed operable and remediable. The examiner also noted that diagnostic testing had also shown that the Veteran had a hiatal hernia with reflux, GERD, gastritis, duodenitis, and a gastric ulcer. The VA examiner opined that it was less likely than not that the Veteran's ventral hernia was incurred in or caused by an in-service injury because there were no previous complaints of abdominal wall disability in 1963 or during service or for several decades after service. She also stated that she could not make a determination on the hiatal hernia. The Board's review of the medical and lay evidence of record indicates that the Veteran has a current stomach muscle disability manifest as a ventral hernia due to service and, thus, service connection is warranted. Initially, the Board notes that the Veteran was provided diagnoses of ventral hernia in VA examinations dated in June 2005 and June 2012. The Veteran's service treatment records are silent as to any documented stomach muscle disorder or ventral hernia during service; however, the Board finds that the Veteran's lay evidence of an in-service injury or strain to his abdominal wall is competent and credible evidence to show in-service occurrence of a stomach muscle disorder. His service activities of planting and retrieving bases of mortars and handling heavy equipment and subsequent complaints of a sensation like a tear in the abdominal wall are capable of lay observation and are consistent with his duties. The October 2010 VA examiner also found that the Veteran had a specific and believable history of an abdominal wall muscle injury in service. After reviewing the lay and medical evidence of record, the Board finds that the preponderance of the evidence is in equipoise as to whether the Veteran's current ventral hernia is related to service. Although the June 2012 VA examiner stated that any current ventral hernia was less likely related to the Veteran's time in service, the Board finds the examiner did not adequately address Veteran's credible report of an injury in service nor his report of stomach trouble upon separation. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Board finds that the evidence is in equipoise as to the question of whether the Veteran's ventral hernia is related to a stomach muscle injury sustained during active service. The Board finds that under the circumstances of this case, the testimony of the Veteran and the corroborating medical evidence of record are sufficient to provide evidence of a nexus, or relationship, between the Veteran's current ventral hernia and his period of active service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran has established a link between his stomach muscle disability manifest as a ventral hernia and military service. The Board notes that the record contains evidence of gastrointestinal disorders (such as GERD, a hiatal hernia, a gastric ulcer, and other gastrointestinal disorders), but that the Veteran has not asserted that a gastrointestinal disorder was manifest in service. Indeed, there was no gastrointestinal complaints noted in service, according to service treatment records and hearing testimony, and there is no evidence of any gastrointestinal disorder in service or within a year of discharge. Further, the medical evidence of record shows gastrointestinal disorders were first manifest decades after his discharge from active service with no indication the disorder developed as a result of a stomach muscle injury in service. Therefore, service connection is not warranted for any present gastrointestinal disorders. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that service connection is warranted. The Veteran has provided evidence of all the elements required and the claim is granted. ORDER Service connection for a stomach muscle disability manifest as a ventral hernia is granted. ____________________________________________ T. L. Douglas Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs