Citation Nr: 1328512 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 08-25 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for lumbago with degenerative joint disease. 2. Entitlement to service connection for postoperative right inguinal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant served on active duty from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2008, the appellant testified at a personal hearing before a Decision Review Officer, and in February 2010, he testified at a hearing before the undersigned. Transcripts of the hearings are associated with the claims file. For the reasons discussed below, the Board finds that the RO substantially complied with the mandates of the November 2010 remand and will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A September 1980 administrative decision denied the appellant's claim for entitlement to service connection for injuries which the appellant experienced in an in-service 1967 jeep accident (claimed as a back injury) because the accident did not occur in the line of duty; the appellant did not appeal the decision. 2. Evidence received subsequent to the September 1980 rating decision is new, but is not material, as it does not raise a reasonable possibility of substantiating the claim for service connection for lumbago with degenerative joint disease, claimed as due to the jeep accident. 3. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a postoperative right inguinal hernia that is related to service. CONCLUSIONS OF LAW 1. The September 1980 administrative decision is final as to the claim of entitlement to service connection for injuries caused by the in-service 1967 jeep accident (claimed as a back injury). 38 U.S.C.A. § 4005(c) (1958, Supp. 1963) [38 U.S.C.A. § 7105 (West 2002)]; 38 C.F.R. § 3.104 (1956, Supp. 1961) [ 38 C.F.R. §§ 20.302, 20.1103 (2012)]. 2. New and material evidence has not been received since the September 1980 administrative decision to reopen the claim of entitlement to service connection for lumbago with degenerative joint disease, claimed as due to the 1967 jeep accident. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Postoperative right inguinal hernia was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of petitions to reopen service connection claims, the appellant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. Prior to initial adjudication of the appellant's claim for entitlement to service connection for postoperative right inguinal hernia, a letter dated in November 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. A December 2010 letter provided notice of the elements of new and material evidence and the reasons for the prior denial. The criteria of Kent are satisfied. See Kent, 20 Vet. App. at 9. Although this letter was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to him, since the claim was readjudicated thereafter, and an additional supplemental statement of the case (SSOC) was provided to the appellant in February 2012. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file, in compliance with the November 2010 remand. The VA Appeals Management Center (AMC) requested the appellant's VA treatment records from 1973 to 2001. The AMC received a negative reply in January 2011 indicating that no records were found for the period requested. The AMC attempted to contact the appellant by phone and sent him a letter in February 2011 notifying him that VA was unable to obtain his VA treatment records for the period from 1973 to 2001 and requested to send the records if they were in his possession. In a February 2011 memorandum, the AMC made a Formal Finding on the Unavailability of VA Medical records. The Board finds that VA satisfied its duty to assist in its attempts to obtain the VA treatment records. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded a December 2006 and December 2010 medical examinations to obtain opinions regarding the etiology of the Veteran's inguinal hernia. As discussed in the November 2010 remand, the VA examination is inadequate. However, the December 2010 VA examination is adequate. This opinion was rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Lumbago with Degenerative Joint Disease New and Material In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. 110, 120 (2012). Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. III. Analysis The appellant asserts that he has a back disability due to an accident in Germany in 1967 when his convoy jeep was forced off the road and flipped. For the reasons that follow, the Board finds that new and material evidence has not been received to reopen the claim. The appellant filed a claim for entitlement to service connection for a back injury in May 1980. An administrative decision was promulgated in September 1980 and found that the appellant's claimed cause of his back pain, a jeep accident in 1967, was not in the line of duty. Thereafter, in October 1980, a letter decision was issued to the Veteran that advised him that his back disorder was incurred under such circumstances as to preclude payment of compensation for the disorder. The appellant did not appeal the decision and it became final. 38 U.S.C.A. § 4005(c) (1958, Supp. 1962) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104 (1956, Supp. 1961) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012)]. The evidence in the claims file at the time of the last final denial of the claim included the appellant's service treatment records, personnel records, and a June 1980 VA examination report. The VA examiner found that the appellant had upper back pain with some persistent muscle spasm. The assessment was musculoskeletal strain. Thus, the appellant was diagnosed with a back disability at the time of the last previous denial. A Line of Duty report from November 1967 reflected that the appellant was a passenger in a motor vehicle accident. The investigation found that the appellant was absent without authority. The injury was found to have occurred "not in line of duty- not due to own misconduct." The remarks noted that the appellant was a passenger and senior occupant in a vehicle which was in a convoy from the field in Germany. The vehicle went out of control and over-turned an estimated three times. The appellant was "under the influence of alcohol at the time of the accident and the vehicle was several hours behind the convoy." The medical diagnoses due to the accident included "1. Acute alcoholic intoxication, 2. Lacerations of scalp, and 3. Back strain without fracture." The evidence added to the record subsequent to the last final denial in September 1980 includes additional statements and hearing testimony from the appellant, VA treatment records, and private treatment records. In his September 2006 claim, the appellant stated that his back condition was due to a wreck sustained in Germany 1967 when a convoy jeep was forced off the road and flipped. The appellant appeared to be referring the car accident referenced in his service personnel records as not in the line of duty. At the RO hearing in June 2008, the appellant also discussed the car accident and his back symptoms. At the February 2010 Board hearing, the appellant described the in-service car accident. See Board Hearing Transcript (Tr.) at p. 7. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The appellant's description of the jeep accident was consistent with the description in the service personnel records, which were already of record. See Id., RO Hearing Transcript at p. 5. He stated that he continued to seek treatment for his back after he got out of the military. See Tr. at p. 8. As the appellant asserted that he had a back disability due to the jeep accident in service at the time of the last final denial in September 1980, the appellant's statements and testimony are cumulative and redundant of evidenced previously of record. Consequently, the statements are not material to the appellant's claim. In a December 2007 letter, J.K., M.D., stated that the appellant had had back pain since Dr. J.K. initial saw him in 2004. Dr. J.K.'s letter is new as it post-dates the previous denial of the appellant's claim. However, as Dr. J.K.'s statement does not indicate that the appellant had a back disability or that he had a back disability that was related to service, the letter does not raise a reasonable possibility of substantiating the claim and is not material. The new evidence of record includes VA treatment records. The VA treatment records are new, as they were not in the claims file at the time of the last final denial. The appellant's VA treatment record reflect that the appellant consistently reported having back pain. An April 2006 VA treatment record indicated that the appellant had a past medical history that included degenerative joint disease and lumbago. A September 2006 VA treatment record noted that the appellant had chronic back pain. A December 2007 VA treatment record noted that the appellant had back pain since 1999. An August 2008 VA treatment record indicated that the appellant had mild lumbar spondylosis. A September 2011 VA treatment record noted that the appellant had a long term history of degenerative disease with pain in the neck and back. The appellant's VA treatment records indicate that he has a current back disability. However, as noted above, the VA examination report in June 1980, which was of record at the time of the last final denial, indicated that the appellant had a back disability. The VA treatment records do not demonstrate that the appellant had a back disability that was related to a back injury in service that was in the line of duty. The Board also received duplicates of the appellant's service treatment records and personnel records. As the records were already in the claims file at the time of the last final denial, they are not new or material. After a review of the evidence added to the file since the September 1980 administrative decision, the Board finds that it does not raise a reasonable possibility of substantiating the claim. The appellant's service treatment records and service personnel records indicate that the appellant was in a jeep accident in service that was not in the line of duty. The evidence of record at the time of the last denial indicated the appellant had a back disability. The new evidence, as described above, does not indicate that the appellant has a back disability that was caused by or related to active duty or that the jeep accident was in the line of duty. The appellant's statements regarding the jeep accident were consistent with his service treatment records and personnel records, which were included in the evidence of record at the time of the September 1980 administrative decision. In the absence of evidence that the appellant had a low back disability that is related to service, the Board concludes that the additional evidence is not new and material and the petition to reopen a claim for service connection is denied. Accordingly, the Board finds that what was missing at the time of the prior final denial remains deficient. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) III. Postoperative Right Inguinal Hernia The appellant asserts that his right inguinal hernia is related to active service. For the reasons that follow, the Board finds that service connection is not warranted. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). At the time of the service entrance examination, 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 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 (2012). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). A July 1965 enlistment examination report notes a left hernia scar. The report reflects that the appellant had a left herniorrhaphy in August 1965 and was re-evaluated in October 1965. As a left hernia was noted on the July 1965 enlistment examination report, it preexisted service. The appellant filed a claim for service connection for a lower abdomen hernia. However, the appellant's VA treatment records indicate that the appellant had a right inguinal hernia in September 2006, at the time of his claim for service connection for a hernia. As the appellant has not had a current left inguinal hernia disability during the period on appeal, service connection is not warranted for a left inguinal hernia. The issue before the Board is entitlement to service connection for a post-operative right inguinal hernia. Since a right inguinal hernia was not noted on appellant's enlistment examination, the presumption of soundness applies. The appellant's service treatment records do not note any complaints or treatment relating to a right inguinal hernia. As discussed above, a left inguinal hernia was noted on the appellant's entrance examination report. A January 1966 service treatment record noted that the appellant had a well-healed left hernia scar and that he had "no hernia at present." A December 1968 discharge examination report noted that the appellant had a history of a hernia and a hernia scar. The appellant noted a history of a hernia on his December 1968 report of medical history. The first reference to a right inguinal hernia in the medical evidence of record is a March 2006 VA treatment record which noted that the appellant reported having right inguinal pain. He felt a slight bulge, which had been going on for about 2 months. On examination, the VA physician found the appellant had a right inguinal hernia. He was referred to general surgery for evaluation. An April 2006 VA treatment record noted that the appellant had a recurrent right inguinal hernia with a history of bilateral inguinal hernia repair in 1960. A May 2006 VA treatment record reflects that the appellant had a right inguinal hernia repair. A September 2006 VA treatment record noted that the appellant reported that he had a hernia repair in the 1960s "it was found on a physical that they gave me." He stated that he still had pain on the right side occasionally. The appellant was evaluated at a VA examination in December 2006. However, the VA examiner did not review the claims file, and the appellant's history is inaccurately recorded in the examination report. The report stated that the appellant had a bilateral inguinal hernia repair prior to boot camp. As discussed above, the appellant had a left inguinal hernia repair. Thus, the VA examination is inadequate. However, the VA examiner did not that the appellant did not have a hernia at the time of the examination. An abdominal examination was normal. The right inguinal area was not tender to palpation. In the December 2007 letter from Dr. J.K., he noted that the appellant had a right inguinal hernia repair in May 2006. At the June 2008 RO hearing, the appellant stated that he complained of hernia many times while in service. See RO Hearing Transcript at p. 4. He stated that he believed the postoperative inguinal hernia was aggravated by his duties and work performance in military service. See RO Hearing Transcript at p. 5. The appellant also indicated that he was seen for his hernia by a private physician between 1968 and 1973 and at VA from 1973. See RO Hearing Transcript at p. 7. At the August 2010 hearing, the appellant indicated that he believed that his hernia was related to the repair in 1965, prior to entering the military. See Tr. at p. 3-5. The appellant indicated there was nothing wrong with respect to the hernia while he was on active duty. See Tr. at p. 6. The appellant was afforded a VA examination in December 2010. The VA examiner found that a hernia was not present. The appellant had a scar that was non-tender to palpation to the right inguinal region. The appellant reported that there had been no recurrent or bulging of the hernia since 2006. The VA examiner reviewed the claims file. The examiner found that the etiology of the appellant's postoperative right (or left) inguinal hernia repair is unrelated to military service. He stated that: Review of the appellant's military medical records reveals a pre-military physical documenting a left inguinal hernia scar. Further review of the [V]eteran's military medical records do not reveal the identification of or treatment for either a right or left inguinal hernia. He had an inservice automobile accident involving alcohol and there was no hernia treatment related to this accident. By the [V]eteran's own admission here today he says he had a hernia repair prior to going into the army, no recurrence of inservice hernia, and surgery to correct a right inguinal hernia in 2006. There is no inservice documentation the pre-existing hernia was aggravated by military service. Therefore, it is this examiner's opinion that the [V]eteran's recurrent right inguinal hernia is not causally or etiologically related to a disease, incident, or injury in military service. The Board finds that December 2010 VA opinion to be highly probative as the examiner provided a thorough rationale for the opinion and reviewed the evidence of record. The appellant has contended that he has a right inguinal hernia disability that is related to service. Although a lay person may be competent to report the etiology of a disability, an inguinal hernia is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of the disorder, the Board finds that the probative value of any such opinion is outweighed by that of the December 2010 VA examiner, who has education, training and experience in evaluating the etiology of an inguinal hernia. The VA examiner reviewed the appellant's claims folder and opined the appellant's recurrent right inguinal hernia is not causally or etiologically related to service. The appellant's inguinal hernia is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the "chronic" and "continuous" symptoms presumptive provisions at 38 C.F.R. § 3.303(b) are not applicable in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, the appellant has provided contradictory statements as to whether he had symptoms of a hernia in service, following the left inguinal surgery. At the June 2008 RO hearing, the appellant stated that he complained of a hernia many times while in service. However, at the Board hearing, he indicated that there was nothing wrong with respect to the hernia while he was on active duty. At the December 2010 VA examination, the appellant also reported that there was no recurrence of an in-service hernia. The first evidence of a hernia following service was in 2006, when he had the surgery to repair a right inguinal hernia. The appellant is competent to report symptoms of pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, due to the contradictory evidence of record, the Board finds the appellant's assertion that he had symptoms of a hernia during service to be less than credible. In sum, the Board finds that a preponderance of the evidence is against the appellant's claim for entitlement to service connection for an inguinal hernia. The appellant's enlistment examination report reflected that he had a left inguinal hernia repair prior to service. The evidence does not show that the appellant has had a left inguinal hernia following service or during the period on appeal. The appellant did have a right inguinal hernia in 2006. However, the evidence is against a finding that there is a nexus between the appellant's right inguinal hernia and service. The Board finds the December 2010 VA examiner's opinion that the disability was not related to service to be highly probative. There was no evidence of a right hernia during service. Although the appellant asserted that he had symptoms of a hernia during service, the Board finds the statements to be less than credible. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence not having been received, the claim to reopen a claim for entitlement to service connection for lumbago with degenerative joint disease is denied. Entitlement to service connection for postoperative right inguinal hernia is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs