Citation Nr: 1334503	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  11-04 121	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico

THE ISSUES

1.  Entitlement to service connection for residuals of a right shoulder dislocation.

2.  Entitlement to service connection for a right inguinal hernia.

3.  Entitlement to service connection for an anal fissure, status post sphincterectomy.

4.  Entitlement to a rating higher than 10 percent for depressive disorder.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran had active military service from March 1991 to March 2008.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified in support of these claims during a hearing at the RO in July 2011 before the undersigned Veterans Law Judge (VLJ) of the Board.  This type of hearing is often and more commonly referred to as a Travel Board hearing.  As discussed below, at the outset of the hearing, the Veteran withdrew his appeal for service connection for residuals of a right shoulder dislocation.  So the Board is summarily dismissing this claim.  38 C.F.R. § 20.204 (2013).  Also earlier, although several other claims were addressed in the statement of the case (SOC), he did not mention them when subsequently filing his substantive appeal to the Board (on VA Form 9), so they, too, are no longer at issue.  38 C.F.R. § 20.200.  Therefore, only his claims for service connection for a right inguinal hernia and anal fissure, status post sphincterectomy, and for a rating higher than 10 percent for his depressive disorder remain.

However, the claims of entitlement to service connection for an anal fissure, status post sphincterectomy, and for a rating higher than 10 percent for the depressive disorder, require further development before being decided on appeal.  So the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board, instead, is going ahead and deciding the claim for service connection for a right inguinal hernia.



FINDINGS OF FACT

1.  At the outset of his July 1, 2011 Travel Board hearing, prior to the promulgation of a decision in this case, the Veteran withdrew from this appeal his claim of entitlement to service connection for residuals of a right shoulder dislocation.

2.  And despite his contentions to the contrary, including during his hearing, it is not shown he has a right inguinal hernia or residuals.


CONCLUSIONS OF LAW

1.  The criteria are met for withdrawal of the substantive appeal concerning the claim of entitlement to service connection for residuals of a right shoulder dislocation.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 

2.  Chronic residuals of a right inguinal hernia were not incurred in or aggravated by the Veteran's service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Residuals of a Right Shoulder Dislocation

Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal (VA Form 9 or equivalent statement) may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2013).  Either an appellant or his or her authorized representative may request withdrawal.  38 C.F.R. § 20.204 (2013).

Here, at the outset of his July 1, 2011 hearing, so prior to the promulgation of a decision in this case, the Veteran indicated he was withdrawing from this appeal his claim of entitlement to service connection for residuals a right shoulder dislocation.  He submitted written confirmation of the withdrawal of this claim right after the hearing.  Consequently, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this claim and it must be dismissed.

II.  Right Inguinal Hernia

A.  VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

The United States Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

(i)  Notice

The VCAA and its implementing regulations provide that, upon receipt of a complete or substantially complete application for benefits, VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013).  

When a claim arises in the context of a Veteran trying to establish his/her entitlement to service connection for a claimed disability, the VCAA notice must apprise him/her of all five elements of the claim, which are:  (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date in the eventuality service connection is granted.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Ideally, the RO should provide the claimant this VCAA notice prior to initially adjudicating the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively "cure" this error by providing all necessary VCAA notice and then readjudicating the claim - including in an SOC or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  As the pleading party attacking the agency's decision, the appellant has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The RO provided the Veteran VCAA notice concerning this claim for service connection for a right inguinal hernia by way of letter dated in December 2007.  The letter was timely, having been sent before, rather than after, initial adjudication of this claim.

The letter also satisfies the content requirements.  It informed the Veteran of the evidence needed to substantiate his claim and identified the type of evidence that would best do so.  It apprised him of his and VA's respective responsibilities in obtaining this supporting evidence.  It included all necessary information on the downstream elements of disability rating and effective date in the eventuality service connection was granted.  It identified the evidence the RO had requested and/or received in support of the claim.  It indicated the RO would make reasonable efforts to assist him in obtaining all other outstanding evidence, provided he identified its source(s), but that it was his ultimate responsibility to ensure VA's receipt of all pertinent evidence.

VA provided him further notice in July 2011 during his hearing before the undersigned VLJ of the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ chairing a hearing must satisfy two duties to comply with this VA regulation, consisting of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Here, the presiding VLJ satisfied both duties.  He explained the nature of the claim by specifically describing the basis thereof as one in which the condition is alleged as having been treated in service and still existing today.  Transcript at 11.  He also inquired as to whether the Veteran had medical confirmation that he had present-day residuals.  Transcript at 10.

He resultantly has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).  Neither he nor his representative asserts that VA failed to comply with the VCAA's notice provisions or satisfy the requirements of Bryant and 38 C.F.R. § 3.103(c)(2).


(ii)  Assistance

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c).

The RO also satisfied its duty to assist the Veteran in the development of his claim by trying to obtain and associate with the claims file all evidence he had identified as potentially pertinent to his claim, including his service treatment and post-service treatment records, whether from VA or private providers.

The RO also afforded him a VA compensation examination for a medical opinion, at the conclusion of which the examiner discussed whether the Veteran has residuals of a right inguinal hernia he had during his service or as a result or consequence of the surgical repair of that hernia.

When VA provides a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

In this case, neither the Veteran nor his representative asserts there are any other outstanding records that are available and needing to be obtained in support of this claim or that the examination provided is inadequate, including for rating purposes, so as to in turn require an additional examination.  38 C.F.R. §§ 3.327(a), 4.2.

Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence the Veteran has submitted or which VA has obtained on his behalf.  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 and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).


B.  Analysis

The Veteran is claiming entitlement to service connection for what he believes are residuals of a right inguinal hernia he had during his military service.  According to his application for compensation, he underwent surgery for repair of the hernia in 1990 at the Great Lakes Naval Hospital.  According to his July 2011 hearing testimony, since undergoing that surgery, when he lifts something heavy such as furniture, he feels bulging, but not a tear, and stinging in the area of the previous hernia.  Allegedly, he knows to avoid a tear by not picking up anything heavy.  He contends that he has never torn the area since he had the hernia, but that approximately three times yearly he feels like it is going to tear.

Considering his statements and testimony in conjunction with all other pertinent evidence in the claims file and applicable statutes and regulations, the Board unfortunately must find that the preponderance of the evidence is against this claim.  Although this evidence corroborates his assertion that, in service, he had a hernia and underwent hernia repair surgery, it does not corroborate the notion that he now has residuals of that hernia and/or repair.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Certain diseases are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 
10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Service connection may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

When deciding claims, the Board is required to consider all potential bases of entitlement - so direct, presumptive, and secondary.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  The Board has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a notice of disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. 

Going back first to the notions of direct and presumptive service connection, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to direct service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or correlation between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.

"Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b).  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Significantly, the Federal Circuit Court indicated that a showing continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 1339.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible).  See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  In the third and final step, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  

So in certain instances lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

This is not always the case, however, as in certain other instances laypersons have not been found competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).


Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

To reiterate, the competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Veteran's Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).


The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

When there exists an approximate balance of positive and negative evidence on a matter material to the determination, reasonable doubt is to be resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Turning now to the facts and circumstances of this particular case.  According to the Veteran's service treatment records (STRs), during service in 1999, as alleged, he presented complaining of pain in his right groin with lifting and straining.  An examiner initially diagnosed a questionable muscle strain, but later, another examiner diagnosed a right inguinal hernia.  This condition necessitated a repair in early 2000, at which time the Veteran reported that he had undergone a similar procedure at 5 years of age.  Thereafter he healed well and the hernia did not recur.  As of November 2007, when he underwent a physical examination in anticipation of his soon retirement from the military, he had no hernia or residuals thereof.  Rather, he reported a history of such hernia, but no active symptoms, and the doctor noted a normal clinical evaluation of the abdomen and viscera (to include hernia).

Following discharge from service in March 2008, the Veteran sought treatment for multiple medical complaints and underwent VA examinations, but according to all but one report of a VA examination, he never reported symptoms of a hernia or any abdominal or groin complaints.  In addition, no evaluating clinician noted any abnormalities, hernia or otherwise, affecting the abdomen or groin.  

In August 2008, during a VA general medical examination afforded the Veteran in response to this claim, he acknowledged that the hernia repair in service had solved his problem and that, rarely, when he lifted something, he felt a twinge in the area of the hernia removal.  The examiner evaluated the Veteran's abdomen/gastrointestinal system, noted no abnormalities, and diagnosed a resolved right inguinal hernia.

The Veteran has not submitted any medical opinion refuting the VA examiner's finding of no present-day hernia or residuals.  He was a corpsman in the military, however, so he is competent to discuss medical issues.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F. 3d at 1377.  But even by his admission, including according to his hearing testimony, his hernia has never actually recurred as he knows how to avoid tearing the area of the prior hernia repair.  At present, albeit rarely, he feels as if a tear is about to occur.  This feeling, described during the VA examination as a twinge if he lifts heavy objects, is not a symptom of a hernia like an actual tear would be.  The VA examiner found the twinge feeling so insignificant he concluded that the hernia had resolved.  Neither the examiner nor the Veteran ascribed this twinge feeling to a particular diagnosis such that the Board cannot find that the Veteran currently has the claimed disability, representing residuals of the in-service hernia and/or repair.  Indeed, during his hearing the Veteran testified that, although he still has what he considers to be associated symptoms, they admittedly are "not often" - owing again to his recognition of what not to do (e.g., no heavy lifting) to avoid a recurrence.

The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Inasmuch as there is no competent and credible evidence establishing the Veteran currently has a disability representing residual of his right inguinal hernia and repair in service, even since the filing of this claim, the Board must deny this claim since the preponderance of the evidence is unfavorable.  Thus, there is no reasonable doubt to be applied in resolving this claim.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

The appeal on the claim of entitlement to service connection for residuals of a right shoulder dislocation is dismissed as withdrawn.

The claim of entitlement to service connection for residuals of a right inguinal hernia is denied.


REMAND

The Board sincerely regrets the delay that invariably will result from remanding, rather than immediately deciding, the remaining claims for service connection for an anal fissure, status post sphincterectomy, and for a rating higher than 10 percent for the depressive disorder, but these claims require further development to ensure the Veteran receives all possible consideration.

First, there appear to be outstanding treatment records needing to be obtained in support of his claim for a rating higher than 10 percent for his depressive disorder.  During his July 2011 hearing, he testified that he was then currently receiving treatment for his depression through Tri-Care.  Records of this treatment are not in his claims file, however, including Virtual VA, so must be obtained and considered.  38 C.F.R. § 3.159(c).

Second, in August 2008, the Veteran underwent a VA examination in support of his claim for service connection for an anal fissure, status post sphincterectomy, during which he reported that since the procedure in service he had had occasional bleeding from his rectum.  The examiner evaluated the Veteran but found no evidence of an anal fissure and, consequently, concluded it had resolved following the sphincterectomy.  The examiner did not however discuss the significance, if any, of the reported intermittent bleeding, which the Veteran continues to complain of, including whether it represents a residual of the anal fissure or surgery for it.  Such a discussion is necessary, particularly given that the Veteran, who has some medical expertise having served in the military as a corpsman, asserts that the bleeding is indicative of, or associated with, a fissure.  During his July 2011 hearing he testified that he still has anal fissures, especially when he really stresses out or eats acidy foods.  So he disputed any notion this condition has resolved.  An addendum opinion therefore must be obtained for the Board to determine whether he currently has residuals of his anal fissure and/or sphincterectomy in service because, just as in the case of his right inguinal hernia that also was experienced and treated surgically during his service, nonetheless also must be shown to still exist.

Accordingly, these remaining claims are REMANDED for the following additional development and consideration:

1.  After securing any necessary authorization from the Veteran, obtain and associate with the physical claims file or Virtual VA all records of his mental health treatment from Tri-Care.

2.  Upon receipt of these additional records, obtain an addendum opinion from the VA compensation examiner that evaluated the Veteran in August 2008, during a general medical examination.  If this examiner is unavailable, have someone else with the necessary qualifications review the claims file.

Ask the examiner to do the following:

a.  Accept as credible the Veteran's report of intermittent rectal bleeding;

b.  Review the transcript of the July 2011 hearing, which describes the bleeding and when it initially manifested;  

c.  Offer an opinion as to whether the Veteran's intermittent rectal bleeding represents a residual of the anal fissure and/or sphincterectomy in service.

d.  Provide rationale with specific references to the record for any opinion expressed.

e.  If an opinion cannot be expressed without resorting to speculation, indicate this in the report but, more importantly, discuss why a more definitive response is not possible.

3.  Review this supplemental opinion to ensure it is responsive to the question of whether the Veteran's intermittent rectal bleeding represents a residual of, or is otherwise related to, his anal fissure and/or sphincterectomy in service.  If the report does not contain a response to this important question, take corrective action.  38 C.F.R. § 4.2.


4.  Then readjudicate these remaining claims in light of this and all other additional evidence.  If either claim continues to be denied, send the Veteran and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims.  

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs