Citation Nr: 1338338 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 06-14 018A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left inguinal hernia. 2. Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from June 1978 to November 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Most recently in April 2013, the Board reopened and remanded the claims for additional development. The case is once again before the Board for appellate consideration of the issues on appeal. The Veteran has submitted a number of treatment records related to rheumatoid arthritis. Service connection for rheumatoid arthritis was previously denied by a final March 2001 rating decision. The Board previously referred this issue to the AOJ for consideration. However, it does not appear the Veteran's application to reopen has been considered in the first instance. Further, the issue of entitlement to service connection for a low back disability has been raised by the record. As these issues are not currently in appellate status, they are REFERRED to the AOJ for its consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, the currently diagnosed recurrent left inguinal hernia is etiologically related to his period of active service. 2. A right hip disability did not manifest in active service; any current right hip disability is not otherwise etiologically related to such service. CONCLUSIONS OF LAW 1. A recurrent left inguinal hernia was incurred in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A chronic right hip disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through a number of letters provided during the course of the appeal that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claims of service connection, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. He has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examinations in conjunction with his appeal, most recently in July 2013. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). This examination is adequate for the purposes of determining service connection, as it involved a review of the Veteran's pertinent medical history and physical examination of the Veteran, and provides a competent etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In obtaining an adequate examination in July 2013, the AOJ has substantially complied with the Board's prior remands. See Stegall v. West, 11 Vet. App. 269 (1998). In Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearings, the Decision Review Officer discussed with the Veteran his service connection theories and the types of evidence capable of substantiating this claim. The Board finds that it has fully complied with the Bryant requirements. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis In deciding the Veteran's claim, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran's diagnosed hernia and right hip disability are not listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply to the instant case. See id. Left Inguinal Hernia The Veteran asserts he is entitled to service connection for a left inguinal hernia due to in-service duties which required heavy lifting. These assertions are entirely consistent with his military occupational specialty (MOS). A review of the Veteran's service treatment records are absent complaints of abdominal or groin pain in service, other than a groin cyst. Post-service, the Veteran was diagnosed with a left groin hernia in at least as early as April 1990, less than two years following service separation. Records dated in April 1992 in conjunction with surgical repair of his hernia, notes a four-year clinical history as well as his reported history of heavy lifting. The Veteran filed a claim for service connection for a left inguinal hernia in March 1993. In July 2013, the Veteran was provided a VA examination to address the etiology of his recurrent left inguinal hernia. Following an examination of the Veteran and review of the claims file, the examiner found the Veteran's hernia is "probably secondary to straining and heavy lifting." The examiner rendered a negative etiological opinion. However, this negative opinion was primarily based on the fact that the first evidence of a hernia diagnosis was in March 1992, with a one-day history of bilateral groin pain. As noted above, the Veteran was diagnosed with a hernia at least as early as April 1990. In sum, the July 2013 VA examination is faulty given the fact that it was based, in part, on an inaccurate factual premise as to when the hernia was first diagnosed. A Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. In the instant case, the Board finds the evidence is at least is equipoise that the Veteran began to suffer symptoms of a hernia in service due to heavy lifting. In fact, the VA examiner notes the Veteran's hernia is likely due to heavy lifting and straining, and the Veteran's MOS of a cannon crewmember lends credence to the Veteran's reports of heavy lifting in service. Notably, the Veteran has consistently reported a competent and credible history of hernia symptoms in and since service. As such, resolving all doubt in favor of the Veteran, the Board concludes that service connection for a left inguinal hernia is warranted. Right Hip Disability The Veteran maintains that he currently suffers from a right hip disability as a direct result of his active service. Specifically, he asserts that he suffered from pain of the right hip in service, which has continued since. While the evidence reveals that the Veteran currently suffers from right hip tendonitis, the competent, probative evidence of record does not etiologically link the Veteran's current disability to his service or any incident therein. Service treatment records are absent treatment for a right hip condition. Further, the report of a February 1985 medical examination, the most recent in-service examination available, notes a normal clinical evaluation of the musculoskeletal system and lower extremities. The Board therefore finds there is no evidence of a chronic right hip disability shown in service. The Veteran was afforded a VA examination in July 2013, during which the examiner noted the Veteran's subjective history of right hip pain both in service and in the time since service separation. After reviewing the Veteran's service treatment records and claims folder, and physically examining the Veteran, the VA examiner determined that, based on x-rays, the Veteran does not suffer from arthritis of the right hip, but instead rendered a diagnosis of chronic right hip tendonitis. The examiner further opined that it is less likely than not that this right hip tendonitis is related to the Veteran's active service, as there are no in-service reports of right hip pain or a chonicity of problems since. In considering the Veteran's current reports of in-service right hip pain, the VA examiner noted the numerous in-service visits for back/flank pain, and perhaps the Veteran is mistaking his lower back/SI joint problems with right hip pain. The Board notes that, based on this evidence, a claim of service connection for a low back disability has been referred to the AOJ for its consideration. In sum, the Board finds that there is no evidence of a chronic right hip disability in service. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current right hip tendonitis and his period of active service. The preponderance of the evidence is against this aspect of the Veteran's claim. The Veteran has produced no competent evidence or medical opinion in support of his claim, and the VA examiner's negative etiological opinion weighs against the Veteran's claim. The Board acknowledges that the Veteran himself has claimed that he suffers from a right hip disability that is related to his period of active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran's lay assertions of an etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a right hip disability, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for a left inguinal hernia is granted. Service connection for a right hip disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs