Citation Nr: 1337095 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 07-33 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for residual scarring, left inguinal hernia repair. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from June 1998 to July 2005. This matter is on appeal from the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran previously appealed entitlement to service connection for posttraumatic stress disorder, low back, and bilateral knees. The Board remanded these issues and service connection was granted in October 2012. He has not expressed disagreement with the initial ratings or effective dates assigned; thus, the sole issue remaining before the Board is service connection for residual scarring. That issue returns for appellate consideration. The Board has reviewed additional evidence associated with the claims file in October and November 2012 after issuance of the last supplemental statement of the case but finds that it is not material to the issue before the Board. As such, initial consideration of the evidence by the Agency of Original Jurisdiction is not required. See 38 C.F.R. §§ 19.37, 20.1304 (2013). FINDINGS OF FACT 1. Residual scarring from a left inguinal hernia repair was noted prior to the Veteran's entry into service. 2. The preexisting left inguinal hernia scar did not undergo an increase in severity during active service. CONCLUSION OF LAW Residual scarring, left inguinal hernia repair, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1153, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran'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, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to this claim. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Residual scarring is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. As above, the issue on appeal is not listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply. Service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the laws and regulations governing service connection outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Pursuant to 38 U.S.C.A. § 1111, and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Specifically, the Court in Wagner held as follows: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. Wagner, 370 F.3d at 1096. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA's General Counsel reasoned that § 3.306(b) properly implemented 38 U.S.C. § 1153, which provided that a preexisting injury or disease would be presumed to have been aggravated in service in cases where there was an increase in disability during service; however, the requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and did not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111. 38 U.S.C. § 1111, as in this case, requires VA to bear the burden of showing the absence of aggravation. Moreover, "temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Board must assess the competency, credibility and probative weight of the relevant evidence, both lay and medical, 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 Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 Veteran 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). In a March 1997 entrance examination, the Veteran was noted to have a left inguinal herniorrhaphy scar. Thus, residuals scarring on the left was noted at entrance to service and the presumption of soundness does not attach. Therefore, the question is whether his preexisting left-sided hernia scar was aggravated by service. The standard by which in-service aggravation is adjudicated is higher if a veteran either engaged in combat with the enemy or was a prisoner of war. See 38 U.S.C.A. §§ 1153, 1154(b); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(b)(2). For either a combat veteran or a former prisoner of war, symptoms indicative of a temporary increase in the severity of a preexisting condition as well as those indicative of a more permanent change in condition during service of the disorder noted at entrance are presumed to be a permanent worsening of the disorder. For all other veterans, permanent worsening of the preexisting condition must be shown by more than temporary symptoms such as flare-ups. During a February 2008 hearing before the RO, the Veteran insisted that he participated in combat. However, he is not in receipt of any decorations that indicate combat service and his military occupational specialty was helicopter repair. While he served in Afghanistan from April 2004 to April 2005, the mere presence in a combat theater is not sufficient to prove that he engaged in combat. VAOPGCPREC 12-99 (October 18, 1999). In addition, service connection has been granted for PTSD, but this was on the basis of a stressor in which the Veteran participated in the recovery of a downed aircraft with dead crew and passengers aboard, not combat. In light of the foregoing, the Board finds that the Veteran is not a combat veteran. Additionally, he does not contend and no evidence suggests that he was ever a prisoner of war. Thus, the more stringent standard requiring evidence of permanent worsening of the preexisting condition during service must be applied. For the reasons that follow, the Board finds that the preexisting left inguinal hernia scar was not permanently worsened by service. Given the involvement of both right and left inguinal hernias, the Board presents the evidence chronologically for clarity. An October 2000 treatment note indicates that the Veteran was seen for a mass diagnosed as a right inguinal hernia. He reported a prior medical history of hernia repair as an infant, but did not evaluate or describe any symptoms relating to the prior hernia repair. He underwent surgery to correct the right inguinal hernia in December 2002. In April 2005, he was seen with complaints of pain in his groin for one year on the left side. The pain increased with lifting, prolonged standing, and running more than a mile. A past surgical history of a hernia in December 2003 was noted. The Veteran underwent a May 2005 physical examination prior to separation from service. When completing a Report of Medical History, he indicated that he had a left hernia surgery while in service and he had pain in the area as a result. The examiner clarified that the Veteran had undergone a left hernia repair surgery the year before and had continued pain at the site of the incision. A consultation was ordered. Again, the history was that he underwent an inguinal hernia repair in 2003 and had complaints of pain with exercise. Multiple exams had not found reherniation. The pain was found to be not typical of any postsurgical pain syndromes. The Veteran's September 2005 claim indicates that he seeks compensation benefits due to "hernia pain from scars." He indicated that his disability began in December 2002. A December 2006 VA examination report indicates that he had a well-healed left inguinal hernia scar that was tender on palpation. The medical history indicates that the problem began in 2002 with a tender lump. A September 2007 statement from the Veteran reported that he had no further treatment for the right inguinal hernia after service. The Veteran was evaluated at another VA examination in October 2007. He reported a history that he developed a painful mass in his groin that was diagnosed as a right inguinal hernia. He indicated that it was large and that surgical repair was conducted in 2002. He noted a burning sensation and throbbing pain in the right groin area which continued to the present following the surgery. The clinical evaluation noted no present hernia on the left side, but did not otherwise evaluate the presence of left inguinal hernia residuals. The Veteran testified before a Decision Review Officer in February 2008. He stated that he had right and left inguinal hernia surgeries. He reported that the left inguinal hernia and surgery occurred during service. His testimony regarding symptoms concerned only the hernia which occurred during service. He did not present evidence to the effect that the hernia repaired prior to service had worsened. At an April 2012 VA examination, the Veteran reported that he had an inguinal hernia during service. He claimed to have discovered the hernia and sought treatment. He reported that the condition was surgically repaired about six months later, resulting in a scar. He complained of daily pain in the scar. He denied additional surgery or procedures for the hernia or the scar. He reported another surgery at age 5 or 6, but could not remember the location of the surgery on his body. He indicated that he did not believe that he had a resulting scar. He denied having a hernia surgery prior to service. A scar of the left groin was noted on physical examination. The examiner indicated that the in-service surgery was on the right side and that all of his subsequent reports of pain related to the side on which the surgery was performed. The examiner also indicated that there was no obvious or reported pathophysiologic mechanism by which the left side hernia scar could have been aggravated during service. The examiner discussed the May 2005 service treatment records, indicating that there was likely a typographic error because the relevant medical history supporting the entries was pertinent to the right inguinal hernia. Accordingly, the examiner concluded that the preexisting left inguinal hernia had not been permanently worsened, i.e., aggravated, during service. Based on the evidence above, the RO granted service connection for a right hernia scar in October 2009. This rating decision followed a February 2008 DRO hearing, where the Veteran insisted that the disability for which he sought service connection was the result of the in-service hernia and repair. The RO continued the denial of service connection for the left side because the service treatment records identified the site of the hernia as the right inguinal region. Thus, to the extent that he had an inguinal hernia during service, surgical repair, and subsequent persistent pain and discomfort in the region of that hernia, service connection is already in effect. As to the left hernia scar, the Veteran has confused the right and left hernias since at least 2005. The history he presented as to developing a hernia and undergoing surgery during service are only consistent with the records showing an in-service right inguinal hernia, yet he has persistently claimed that the hernia was on the left. Moreover, his statements regarding his childhood hernia repair have been increasingly vague to the point where, by the time of the April 2012 VA examination, he denied ever having a preservice hernia. Thus, the Board assigned little probative weight to his lay statements. The weight of competent evidence demonstrates that the in-service inguinal hernia and symptoms associated with its repair during and after service are associated with an already service-connected disability on the right. The medical evidence, beginning with the April 2005 complaint of left side inguinal pain, through the December 2006 VA examination, relies on the Veteran's account of his medical history as to the side on which in-service inguinal hernia occurred. The October 2007 and April 2012 VA examination reports indicate that the in-service hernia was right-sided based on the service treatment records and that the Veteran's complaints were related to the right inguinal hernia. There are no present complaints regarding the preexisting left inguinal hernia scar based on either the Veteran's statements and testimony or the medical evidence. The Board finds that competent and credible evidence associates all the present complaints with the right inguinal hernia which occurred during service and is presently service-connected. In sum, the presumption of soundness was overcome based on clear and unmistakable evidence (a notation in the record) of a left-sided hernia scar on entrance to service. Further, the clear and unmistakable evidence reflects that there was no increase in serverity of the Veteran's left-sided hernia scar during service; rather, he underwent a right-sided hernia repair in-service which is now service-connected. Therefore, the appeal for residual scarring due to a left-sided hernia repair is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2005 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the service and VA treatment records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. Next, the Veteran was afforded an April 2012 medical examination to obtain an opinion as to whether a scar, residual of a left inguinal hernia, existed prior to service and whether this disability permanently worsened or otherwise increased in severity (i.e., was aggravated), and if so, whether such increase was beyond its natural progression during his service. The examiner offered an opinion that a scar did preexist and was not likely increased in severity by service. The third component of the Board's instruction was not addressed, but in the absence of an increase in severity during service, that answer is not necessary. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history and listened to the Veteran's assertions. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. The Board is obligated by law to ensure that the Appeals Management Center (AMC) complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded service connection for a scar, residual of a left inguinal hernia repair, in May 2011. In relevant part, the remand instructed that a VA examination be provided to the Veteran to assist in determining whether the Veteran's current scar existed prior to service, whether any preexisting scar permanently worsened or otherwise increased in severity during service, and whether any such increase was beyond the natural progression of the inguinal hernia repair. The Veteran was seen for an April 2012 VA examination. The examiner provided responsive opinions to the questions posed by the Board. The examination and opinion are adequate for ratings purposes, as discussed. The Board finds that the AMC complied substantially with the May 2011 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for residual scarring, left inguinal hernia repair, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs