Citation Nr: 1329587 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 11-11 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an umbilical hernia. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from November 1966 to November 1968. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in August 2011. This matter was originally on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The most probative evidence preponderates against finding that the Veteran's current umbilical hernia is in any way related to active service. CONCLUSION OF LAW An umbilical hernia was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was readjudicated in September 2011. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection The Veteran contends that he has had a hernia since service. In a statement received by VA in July 2009, the Veteran noted that while he was on active duty, he had a hernia while in Vietnam. The Veteran stated that it was small at the time and that a medic advised that it was nothing to be concerned about. The Veteran reported that this hernia had grown and that he currently used a stomach wrap. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board notes that several VA treatment records note the Veteran's self reported history that he developed an umbilical strain while in Vietnam that later developed into an umbilical hernia. In the VA examination request, the RO noted that the Veteran was claiming service connection for a hernia, that records do not show any treatment for this condition, but that the Veteran did have some complaints of stomach pain that could or could not be related in service treatment records. The RO noted that since the Veteran said that his hernia occurred during a combat mission, even though there was no mention of it in his service treatment records, the event for ordering a VA examination is conceded as the Veteran reported that it happened during combat and that Vietnam service is verified for the Veteran. The Veteran underwent VA examination in December 2009 at which time the Veteran stated that he noticed an umbilical hernia in 1967 after he fell over an object. The Veteran reported that he was seen for it in the service by a medic and told that it was nothing to worry about. After physical examination of the Veteran, he was diagnosed as having a reducible umbilical hernia. The examiner stated, We were told by the general remarks that the umbilical hernia issue was conceded because it was reported during combat. Based on the currently available information his current umbilical hernia is likely to be a result of the military service. An April 2011 letter from a VA physician states, Service record 29 Nov 67 notes treatment for viral gastroenteritis, exam 3-18-66 does not note a hernia as present. ... The history of a viral gastroenteritis is a condition of limited duration and would not cause or produce an umbilical hernia. There is no indication for documentation of a hernia at the time of treatment for the gastroenteritis and there are exam during the service that did not document a hernia. The likelihood of the viral gastroenteritis to be related to or caused the hernia is less than likely or less than 50% probability. An August 2011 Addendum opinion notes that since the condition of the umbilical hernia is not conceded, the opinion is, I cannot resolve this issue without the resort to mere speculation. Explanation: The Veteran did not have evidence of umbilical hernia in the service or upon discharge from the service from what I can see in the records. He did not have any surgery on the abdomen in the service[.] The [V]eteran has significant obesity which is a risk factor for the development of umbilical hernia. He reported trauma to the abdomen in the service but there was no evidence of this developing into an umbilical hernia condition in the service that I can find. Opinion: Based on the above currently available information, it[] is less likely as not (less less than 50/50 probability the [V]eteran['s] umbilical hernia was caused or aggravated by the service. The Veteran served as a field radio mechanic while on active duty. There is no specific evidence that he personally engaged the enemy in a direct combat operation. Nevertheless, for the purpose of this decision only, the Board will assume that he is a combat veteran. Pursuant to 38 U.S.C.A. § 1154(b) , with respect to combat veterans, [VA] shall accept as sufficient proof of service-connection...satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. In Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit articulated a three-step sequential analysis to be reviewed when a combat veteran seeks benefits under the method of proof provided by 38 U.S.C.A. § 1154(b). Initially, VA must determine whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." If a veteran produces credible evidence that would allow a reasonable fact-finder to conclude that the alleged injury or disease was incurred in service, then the veteran has produced "satisfactory evidence" to satisfy the first step under the statute. This determination requires the credibility of the veteran's evidence to be judged standing alone and not weighed against contrary evidence the Board acknowledges that the appellant is a combat veteran. In determining whether documents submitted by a veteran constitute "satisfactory" evidence under 38 U.S.C.A. § 1154(b), VA may properly consider "internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). The second step under Collette requires VA to determine if the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service," again without weighing the veteran's evidence with contrary evidence. Collette, 82 F.3d at 392- 93. If these two inquiries are met, VA "shall accept" the veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists. At this point, a factual presumption arises that the alleged injury or disease is service-connected. Id. It is under the third Collette step under that VA is to weigh evidence contrary to that which established the presumption of service connection. If VA meets its burden of presenting clear and convincing evidence to the contrary, the presumption of service connection is rebutted. The Veteran is competent to state that he noted a bulge while on active duty, and that a medic advised him not to worry about it. Moreover, assuming that he did serve in combat, incurring a hernia while carrying a the normal load carried by a combat soldier would be "consistent with the circumstances, conditions, or hardships of such service." Significantly, however, there is clear and convincing evidence that rebuts the presumption of service connection. First, the appellant specifically denied a history of a rupture or hernia in his October 1968 medical history report. Second, clinical evaluation of the Veteran's abdomen and viscera in October 1968 was negative for a hernia. Third, there is no evidence showing treatment for a hernia for decades postservice. The Board notes that where there is a difference of opinion among the medical professionals as to whether the Veteran's current umbilical hernia originated in service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have provided guidance for weighing medical evidence. They have held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. There are medical opinions regarding the Veteran's hernia - i.e., VA treatment records which record the Veteran's self reported history that he developed an umbilical strain while in Vietnam that developed later into an umbilical hernia, and the December 2009 VA examiner's opinion that the umbilical hernia was likely to be a result of the military service. Further, while the Veteran is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, such lack of contemporaneous evidence is for consideration in determining credibility. As noted, the record is devoid of objective evidence of an umbilical hernia until decades after service. In addition, Report of Medical Examination in October 1968, notes clinical evaluation normal for abdomen and viscera (include hernia). Further, in the Report of Medical History completed by the Veteran in conjunction with his October 1968 separation examination he denied ever having rupture/hernia. The Board finds the Veteran's current statement that he was found to have a hernia in service internally inconsistent with his October 1968 denial of ever having a hernia. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The statement is also inconsistent with the medical finding of a normal abdomen and viscera at the October 1968 examination. Finally, in January 2007, the Veteran filed a claim with VA for compensation for hearing loss and tinnitus. This is evidence that he was aware that he could apply for VA benefits for service related disabilities. Notably, he did not claim entitlement to service connection for an umbilical hernia. This is inconsistent with his current assertion that an umbilical hernia has existed since service because it is reasonable to conclude that if he believed an umbilical hernia was related to service, he would have claimed service connection for it in 2007. Thus, the Board finds that due to internal inconsistencies of the Veteran's statements in addition to the contemporaneous medical evidence which indicates that at separation from service, the appellant did not have a hernia, the claimant's statement regarding an umbilical hernia in service and since service is not credible. Because the Board has found the Veteran's statements that he had a hernia in service and since service not credible, any opinion relying on this information is also not probative evidence. In this case, VA treatment records which note that the Veteran developed an umbilical strain while in Vietnam that later developed into an umbilical hernia is not probative evidence as the history was based on an inaccurate factual premise. Reonal, 5 Vet. App. at 461. Similarly, the original VA examiner's opinion provided in December 2009 was based on an inaccurate factual premise. Thus, the only probative medical opinion of record is the unfavorable August 2011 VA Addendum opinion. As such, the record is absent credible evidence of hernia or injury to abdomen during service and probative medical evidence of a nexus between any umbilical hernia and the Veteran's active duty service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for an umbilical hernia is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs