Citation Nr: 1338901 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-33 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a "stomach" hernia, to include a hernia of the umbilicus, status post operative. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from December 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2010 and May 2010 rating decisions of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the Board by videoconference in August 2012. The hearing transcript is of record. The claim for service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. At his August 2012 hearing before the Board, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, with the assistance of his authorized representative, that a withdrawal of the appeal for service connection for a left shoulder disorder is requested. 2. The preponderance of the probative and persuasive evidence is unfavorable to the Veteran's claim for service connection for an umbilical hernia, status post operative. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant (or his or her authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204(3) (2013). 2. The criteria for service connection for umbilical hernia, status post operative, are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks to withdraw his appeal for service connection of a left shoulder disorder, and seeks service connection for a hernia. 1. Request to withdraw issue Following a rating decision issued in March 2010, the Veteran disagreed with denial of service connection for a left shoulder disorder. The Veteran timely submitted a substantive appeal following the issuance of a statement of the case addressing this issue. That issue is properly before the Board for appellate review. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2013). In the present case, the appellant, with the assistance of his authorized representative, requested at his August 2012 hearing before the Board, to withdraw his appeal for service connection for a left shoulder disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Claim for service connection for a hernia VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A letter issued in January 2010 advised the Veteran of all elements of a service connection claim and a claim for an increased rating. The letter included information regarding the criteria for assigning a disability rating and an effective date for the award of benefits if service connection were awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to either content or timing of notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that no defect in the timing or content of notice to the Veteran is apparent from the record. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) (West 2002) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (West 2002)(setting forth Secretary's various duties to claimant). VA clinical records are associated with the claims file, and electronic records are associated with the Veteran's electronic file. The Veteran does not allege that he receives Social Security Administration (SSA) benefits based on disability. Service treatment records, including induction and discharge examinations, are associated with the claims files. VA outpatient treatment records dated from 2009 through January 2012 are associated with the claims file and electronic record (Virtual VA). The Board acknowledges that no VA examination as to the etiology or onset of an umbilical hernia, corrected, in 2009 was conducted. In this regard, however, the Board notes that, in determining whether the duty to assist requires that a VA medical examination be provided with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military 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). See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability (like pain, etc.), but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability). In this case, there is no evidence during the Veteran's service that he manifested a hernia of the stomach or abdomen. The Veteran has specified that he did not report a complaint of a hernia in service, so it would be fruitless to attempt to obtain additional service records. The Veteran reports that private medical evaluation of a hernia conducted in 1970 has been lost; the Veteran has not indicated that he sought private evaluation or care for a hernia prior to 2009. The November 1970 VA examination establishes that the Veteran did not report a hernia at that examination, and establishes that the provider stated that no hernia was present. The Veteran has provided his own lay statement and a statement of a family member that he "busted a gut" in service, but this lay evidence does not establish a medical diagnosis. If the Veteran were to be afforded VA examination, the examiner would need to determine the credibility of the Veteran's lay report that the umbilical hernia diagnosed in 2009 had been present since 1969, since the Veteran's own report that the umbilical hernia was present from 1969 to 2009 is the only evidence available between 1969 and 2009. However, it is the adjudicator's responsibility, not the examiner's responsibility, to weigh credibility. The evidence of record, as set forth and analyzed below contains sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon, supra. There is no duty to afford the Veteran an examination or to Remand the claim to seek evidence. The Board has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue addressed in this decision was identified at Board Videoconference hearing. Information was elicited from the Veteran concerning the nature and etiology of his hernia, his observations of the hernia, and whether there was additional evidence. The Veteran did not indicate that he had received any clinical treatment for a hernia prior to 2009 or that any additional clinical or nonclinical records which might substantiate the claim were available. The duties set forth in 38 C.F.R. § 3.103(c)(2) have been met. Hence, no further notice or assistance to the Veteran 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). The Board will therefore proceed with the adjudication of this appeal. Facts and analysis The Veteran contends that he incurred a "bulge" in the abdominal near the end of his service. The Veteran later learned that the "bulge" was a hernia. The Veteran has stated that he did not seek treatment for the abdominal hernia in service because he was just three weeks away from the end of his tour in Germany and he did not want to be held over for medical reasons. The Veteran's separation examination, conducted in September 1969, more than two months prior to the Veteran's November 1969 service discharge, discloses that the Veteran's abdomen was described as normal. At his August 2012 hearing, the Veteran testified that, after he developed the abdominal "bulge" in service, he wore an Ace bandage to hold it in. The Veteran testified that he was wearing that Ace bandage when he returned home after his service discharge, and he told his uncle, who saw the bandage, that he was wearing it because he "busted a gut" lifting a large tire so that it could be mounted on a truck. August 2012 Videoconference hearing Transcript (Tr.), pages 5, 6. JB, who states he is the Veteran's uncle, has submitted a lay statement indicating that he observed the Veteran to be wearing an Ace bandage around his stomach when he returned home after military service. The Veteran further testified that he sought evaluation of the abdominal bulge in 1970 from his family physician, Dr. DKR. The Veteran stated that Dr. R. died in 1973, so the records of the 1970 evaluation are unavailable. The Veteran testified that no other provider evaluated the bulge until he received VA surgical treatment in 2010. Tr. 7-10. The Veteran further testified that the "bulge" continued to be present, about the size of a thumbnail, unchanged, for many years, and that the Veteran self-treated it with an Ace wrap or a weightlifter's belt for many years. The Veteran testified that it suddenly enlarged when he was pulling a board off a wall, and began to stick out about four inches, and became painful. At that time, he sought VA evaluation. VA treatment records reflect that the Veteran sought evaluation of an abdominal hernia in 2009. The report of VA examination conducted in November 1970, about one year after the Veteran's service discharge, reflects that the Veteran reported a right knee injury and reported swelling in the face and body, described as hives, but he did not report an abdominal hernia or a "bulge" in the stomach area. The Veteran reported, in the form used for the 1970 VA examination, in response to the question asking about medical history since latest examination, that he had received "no medical treatment." In the portion of the physical examination report for the digestive system, which requests that the examiner describe "enlargements, masses, tenderness," among other information, the examiner noted that the Veteran was "thin." In Block 38, entitled "HERNIA," the examiner indicated "none." VA treatment records beginning in 2009 reflect that, at the time of an August 2009 surgery consultation, the Veteran reported a history of an umbilical hernia of "several years" duration and discomfort with heavy activity. Another August 2009 VA outpatient note reflects that the Veteran reported having an umbilical hernia ("belly button" hernia) since 1969, with recent enlargement. VA treatment records confirm that an umbilical hernia was surgically corrected in 2009. The service treatment records disclose no umbilical hernia on separation or discharge. However, the Veteran has testified that he did not seek treatment in service or report the problem in service. Moreover, the Veteran testified that his separation examination was provided before he noticed the umbilical hernia, so the service treatment records are consistent with the Veteran's testimony. However, the evidence from the November 1970 VA examination is contradictory to the Veteran's testimony and statements regarding incurrence of an umbilical hernia in service. The Veteran explained that he did not report the problem in service because he only noticed it during his last month in service and did not want to have his service extended. In contrast, the Veteran has provided no explanation for the fact that he did not report the umbilical hernia at the time of the first post-service VA examination in November 1970. The Veteran has not explained the provider's notation that there was no hernia, if, in fact, an umbilical hernia was present. The Veteran testified that he consulted his family physician about the hernia in January 1970. The Veteran has not explained why he wrote, in the November 1970 VA examination report, that he had not obtained any medical treatment, if, in fact, he had consulted his private physician about the hernia. The Veteran has not explained why he was not wearing an Ace bandage, which would have called the examiner's attention to the hernia, if an umbilical hernia was present at the time of that VA examination in 1970. The Veteran has provided a statement from a family member who observed the Veteran wearing an Ace bandage "for his stomach" in 1969 when he returned from service. However, the Veteran has not provided a statement from any individual or provider who observed an umbilical hernia or observed the Veteran to be using a bandage or belt to hold in a hernia during the period from 1970 to 2009. The family member's statement that an Ace bandage was observed around the Veteran's abdomen in 1969 is credible, and is accepted as evidence that the Veteran was using an Ace bandage. However, the family member's statement does not establish a medical diagnosis for the reason underlying the use of the Ace wrap, and does not establish that the Veteran used an Ace wrap from 1970 to 2009, when an umbilical hernia was medically diagnosed and corrected. The record reflects that the Veteran performed heavy or manual labor or lifting after his service discharge. The record also reflects that the Veteran likely would have undergone physical examinations after the November 1970 VA examination prior to VA treatment in 2009, such as following arrests noted in the record. The Veteran testified that he used support for the umbilical hernia. It is not credible that the Veteran would have manifested an umbilical hernia that required support during manual labor or heavy lifting from November 1969 to 2009 without having medical or non-medical evidence of such hernia after 1969. While the statement of the Veteran's family member about his observation in 1969 supports the Veteran's claim, it does not provide evidence during the following 38 years prior to the Veteran's VA treatment in 2009. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Evaluation of credibility may include such factors as plausibility, accuracy of memory, interest, bias, inconsistent statements, demeanor, consistency with other evidence of record, and the like. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). In this case, the Veteran asserted during his hearing, that VA clinical records supported his claim that the hernia had been present continuously since 1969. However, VA records establish that he provided inconsistent reports of history, such that some providers noted that a hernia had been present for "several" years, and others stating that the Veteran reported that the hernia had been present since 1969. There is no medical or lay evidence, other than the Veteran's own testimony, that an umbilical hernia was presented continuously from service discharge in 1969 to 2009, when the Veteran sought VA evaluation. The Veteran testified that he used support for the umbilical hernia. It is not credible that the Veteran would have manifested an umbilical hernia which required support during manual labor or heavy lifting from November 1969 to 2009 without any lay or medical evidence to support that claim after 1969. The November 1970 VA examination report is inconsistent with the Veteran's statements and testimony that an umbilical hernia which was surgically treated in 2009 was incurred in service. In particular, the repot of the 1970 VA examination is more persuasive and probative than the Veteran's recollections. The Board recognizes that the Veteran is competent to state that he noticed a bulge of the belly button in service, and the Veteran is competent to state that the bulge remained continuous after the Veteran's discharge. Nevertheless, the Board finds that the Veteran's report that he had a bulge at the umbilicus from 1969 to 2009 is less persuasive than the November 1970 VA examination report, which is wholly devoid of complaint or notation of such hernia. Although the Veteran has explained why he did not report the hernia in service, there is no explanation of the Veteran's failure to report the hernia at the time of a 1970 VA examination after service. The Veteran has testified that he reported the hernia to a private physician in early 1970, but that report of the timing of private treatment conflicts with the notation made by the Veteran himself on the November 1970 VA examination report. The absence of a report of umbilical hernia from one record of treatment, such as the November 1970 VA examination report, is not necessarily inconsistent with the Veteran's current statements that he incurred an umbilical hernia in service. However, the lack of reporting of a hernia on VA examination in 1970, together with lack of any evidence about the hernia from 1970 to 2009 is inconsistent with the Veteran's assertions that the hernia was incurred in service and remained a problem until it was exacerbated and corrected in 2009. The November 1970 VA examination report which is unfavorable to the claim is more probative than the Veteran's lay recollections and the lay statement of the Veteran's uncle. The preponderance of the probative and competent evidence is against the claim. The claim must be denied. ORDER The appeal for service connection for a left shoulder disorder is dismissed. The appeal for service connection for an abdominal hernia is denied. REMAND The Veteran contends that he has PTSD as the result of an incident in service in 1969. The occurrence of the incident, and the fact that the individuals who died or were injured were in the Veteran's unit, has been verified since a VA examination was conducted in March 2011. The Veteran's description of his reported role prior to and following the incident cannot be verified. The verification of the incident the Veteran contends caused his PTSD was not of record at the time of a VA examination, and an updated opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any additional evidence that might assist the Veteran to corroborate his alleged involvement in a January 1969 accident involving injury and death of members of the unit to which the Veteran was assigned. 2. Obtain the Veteran's VA treatment records since March 2011. Afford the Veteran an opportunity to identify any non-VA (private) psychiatric treatment since March 2011. 3. Ask the examiner who conducted a VA examination in March 2011 to provide an updated opinion that reflects review of the evidence regarding a 1969 motor vehicle accident that resulted in injury to a member of his unit and the death of two members of his unit. If the examiner who conducted the 2011 VA examination is not available, the Veteran should be afforded another VA examination. The addendum or VA examination report should address the following: (i). The examiner should report a multi-axial diagnosis, identifying all current psychiatric disorders. Include discussion of any change in the assigned diagnosis(es) since the prior examination and state whether any change made is based on additional treatment records, evidence of a 1969 motor vehicle accident involving members of the Veteran's unit, or other evidence. (ii). The examiner should opine as to whether the Veteran meets the criteria for a diagnosis of PTSD. (iii). If the examiner opines that PTSD is not present or is not related to the Veteran's service, the examiner should explain the basis for the opinion. (iv). For any psychiatric disorders (other than PTSD) diagnosed, the examiner must opine as to whether it is at least as likely as not (that is, at least a 50-50 probability) that any psychiatric disorder had its onset during his period of active service. A rationale must be provided for each statement offered. If it is not possible to provide a requested opinion without resort to speculation, the examiner should state why speculation would be required in this case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Then, the claim on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs