Citation Nr: 1340017 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 02-05 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the residuals of hernia repair on the basis of aggravation. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974, and from August 1991 to February 1992 when he was assigned to Southwest Asia in support of Operation Desert Shield/Desert Storm. He was in the United States Army Reserve Control Group (Standby) from October 1974 to October 1978. From January 1979 to January 1980 and from April 1980 to November 2000, he was a member of the Oklahoma Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied service connection for residuals of hernia repair. The Veteran was afforded a videoconference Board hearing in August 2002 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the case for additional development in August 2003. In an April 2005 decision the Board denied the claim for service connection. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court), which granted a joint motion of the parties in July 2006 vacating and remanding the Board's April 2005 decision. In October 2006, the Board then remanded this matter for additional development. In a January 2008 decision, the Board again denied the claim. The Veteran appealed to the Court, which in July 2008 vacated the Board's January 2008 decision and remanded the matter for additional development pursuant to another joint motion of the parties. The Board remanded this matter for additional development in November 2008, October 2009, and November 2010. In a June 2011 decision, the Board again denied the claim. The Veteran again appealed to the Court, which in June 2012 vacated the Board's June 2011 decision and remanded for further development pursuant to a joint motion of the parties. In December 2012, the Board remanded this matter for further development. In June 2013, the Board requested an expert medical opinion regarding this claim from a general surgeon at the Veterans Health Administration (VHA). Later that month, Dr. W.A.S., Jr., chief of surgery at a VA facility in Pennsylvania, submitted a VHA opinion. FINDING OF FACT The Veteran's preexisting hernia repair was aggravated beyond the normal progress of the disorder as a result of injury during a period of ACDUTRA in May 1997. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of hernia repair on the basis of aggravation have been met. 38 U.S.C.A. §§ 101(21) and (24), 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.203, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the Court. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of the claim for service connection for the residuals of hernia repair without detriment to the due process rights of the Veteran. Service Connection The Veteran seeks service connection for the residuals of hernia repair on the basis of aggravation. He contends that he underwent hernia surgery in 1987 and that during a period of ACDUTRA in 1997 the hernia recurred or was otherwise aggravated to the extent that he required additional surgery in 2002. Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Service connection is not available for a disease incurred or aggravated while performing INACDUTRA, except for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. 38 C.F.R. § 101(24)(C). Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury or heart disease incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). Generally, in order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id. See also Donnellan v. Shinseki, 24 Vet. App. 167 (2010). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, 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 Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Factual Background and Analysis In 1987, the Veteran underwent hernia repair following a job-related injury unassociated with his military service. Private treatment records show that the Veteran suffered a midline hernia of the upper abdomen in April 1987 when he was picking up supplies while working his civilian job and that he had surgical repair in May 1987. Reports of examinations performed in military service, such as those in August 1988, January and August 1991, January 1992, June 1993, and July 1995, show that the Veteran had a well-healed surgical scar on his abdomen. On examination, his abdomen and viscera, including the potential presence of a hernia, were normal. The Veteran consistently asserts in various written submissions, such as his claim in June 2000 and a January 2001 statement, his Notice of Disagreement received in February 2002, and his April 2002 Substantive Appeal that his hernia was a pre-existing condition that did not develop while on active duty but that was aggravated during annual National Guard training at Fort Chaffee, Arkansas, in May 1997. He stated that he was the ammunition sergeant for A Battery and his commander had insisted that he attend this annual training in May and June 1997. In December 1997, the Veteran underwent a periodic examination in conjunction with his National Guard duty. It was noted that he had a 4-inch midline scar, the result of the 1987 repair of a ventral hernia. It was noted that the Veteran stated that the area becomes stressed with sit-ups. He was given a 90 day physical profile which restricted his duties due to his ventral abdominal hernia. In May 1998, the Veteran requested a release to attend summer camp. He asked that a health care provider evaluate his hernia incision and determine whether he was fit for physical activity, such as sit-ups. The assessment was an abdominal ventral hernia. As a result of this evaluation it was noted that the Veteran had no problems with sit-ups and no restrictions were needed. In August 1998, the Veteran again requested that his hernia be checked. The presence of an abdominal ventral hernia was confirmed. In October 1998, the Veteran was treated for a small incisional ventral hernia. In December 1998, the Veteran was to be scheduled for hernia surgery. In January 1999, the Veteran was treated for recurrence of a ventral abdominal hernia. It had reportedly appeared during the last 2 to 3 years and had been associated with climbing and lifting. On an August 1999 report of medical examination, completed in conjunction with his service in the National Guard, it was noted that the Veteran had a hiatal hernia and that it had been present since 1987. He was given a permanent physical profile restricting his duties. In October 1999, on an Annual Medical Certificate, the Veteran reported the presence of a hernia on the right side of his chest. In March and April 2000, the Veteran was treated for a hernia. It was noted that he had undergone hernia repair but that the repair had broken down. Nevertheless, the treating physician stated that the Veteran could attend annual training. In January 2002, the Veteran underwent surgery at VA to repair a recurrent ventral hernia. He reported that it had been increasing in size during the previous 5 years. During his August 2002 video conference Board hearing, the Veteran testified that he underwent hernia surgery in 1987 and that during a period of ACDUTRA in 1997 the hernia recurred or was otherwise aggravated to the extent that he required additional surgery in 2002. His service representative noted that the hernia repair operation in 1987 occurred shortly after the Veteran's one year anniversary from retirement from military service at that time. He also noted that since that operation and the Veteran's return to military service he was on profile several times for his hernia repair. The Veteran testified that he joined the National Guard shortly after his first hernia surgery and, aside from a second period of active duty in Saudi Arabia, was ammunition chief in an artillery unit for 12 years. He noted that his treatment records in service and through VA attest to the problems he was having with his hernia from 1997 through 2002. The Veteran also testified that he ruptured his hernia during night maneuvers at Fort Chaffee in May 1997 during a period of ACDUTRA when he and another soldier were placing pots in a truck. He said that the next day he told his unit administrator that he had hurt himself and went to see medics, but nothing could be done until later. He said that he persisted in speaking to his unit administrator about this and that he was eventually told to go to a VA clinic. He said that a doctor there eventually scheduled him for surgery. He and his wife described his current symptoms as sharp pain and difficulty sleeping. VA examinations in February 2007, February 2011, and January 2013 have been found inadequate for various legal reasons, as explained in the joint motions of the parties, previous Board remands, and the Board's request for a VHA opinion. The January 2013 VA examiner noted, however, that the Veteran reported that since his surgical repair he had continued tenderness at the surgery site and described a pulsing and tearing pain. It also was noted that this discomfort increased with straining. After the completion of the January 2013 VA examination, the medic for the Veteran's National Guard unit in May 1997 submitted a notarized statement in February 2013. In the statement, the medic related that the Veteran injured his hernia repair in May 1997 during field training for combat readiness. He stated that the Veteran reported to the battalion aid station without a sick call slip and was complaining of "abdomen pain." The medic further stated that the unit administrator had sent the Veteran to the medic. The medic noted that the Veteran's abdomen was tender to touch with no other complaints. The medic also related that he recorded his findings on a chronological record of medical care, a SF600, and that he had recommended light duty and follow-up with upper echelon medical as time and the mission permitted. This SF600 is not found in the claims file. Because of difficulty in obtaining an adequate medical opinion from the Compensation and Pension Service regarding whether the Veteran's preexisting hernia repair worsened during a period of ACDUTRA and, if so, whether that worsening was a result of the natural progress of the preexisting condition, the Board found that an expert medical opinion from the VHA was needed to address these questions. In June 2013, Dr. W.A.S., a board-certified general surgeon with 39 years of experience, including the provision of surgical care for many abdominal hernias, reviewed the claims file and provided a report. Based on the medical and lay evidence of record, the VHA expert opined that it was at least as likely as not that the Veteran's preexisting hernia repair worsened, and in fact recurred, during a period of ACDUTRA in May 1997. Dr. W.A.S. noted many very specific statements in the record from the Veteran about symptoms of aggravation of the hernia in this time frame. He also noted that in this context aggravation of a previously repaired hernia usually indicated recurrence of the hernia. Dr. W.A.S. also noted that there was no evidence in the record that the hernia recurred prior to May 1997 and a December 1997 examination showed that it had recurred prior to that examination. The VHA expert noted that both the Veteran's history and documents in the record were consistent with a recurrence of the hernia in May 1997. The VHA expert also opined that it was at least as likely as not that this worsening and development of a recurrent hernia was beyond the natural progression of the Veteran's condition. Dr. W.A.S. noted that the vast majority of abdominal hernias do not recur and that the Veteran had described a specific incident that he believed at the time caused the worsening of his condition. Moreover, there was no documentation of any other events that might have caused the recurrent hernia during this time period. Based upon the above, the Board finds that the credible lay and medical evidence establishes that the Veteran's preexisting hernia repair was aggravated beyond the normal progress of the disorder as a result of his injury during a period of ACDUTRA in May 1997 and that service connection for his claim is warranted. Initially, the Board notes that National Guard records associated with the claims file indicate that the Veteran received 15 points for ACDUTRA service between April 1997 and April 1998, which covers the time period when he claimed to have aggravated his former hernia repair surgery at Fort Chaffee, Arkansas, in May 1997. While a memorandum dated April 2010 contains the RO's formal finding of the unavailability of service verification for all periods of the Veteran's active duty, ACDUTRA, and INACDUTRA, an April 2009 National Guard report shows the Veteran had been awarded 15 retirement points for ACDUTRA service performed between May 17, 1997 and May 31, 1997. The Board also finds that the notarized February 2013 statement of Sergeant A.T., the attending medic to the Veteran in May 1997, corroborates any service department records indicating that the Veteran served a period of ACDUTRA in May 1997. Further, Sgt. A.T. explained in his letter that May 1997 represented field training for combat readiness for this National Guard unit. Therefore, the Board finds that the Veteran was serving during a period of ACDUTRA in May 1997 when he claimed he aggravated his hernia repair. The Veteran testified during his Board hearing that residuals of his hernia repair included sharp pain and difficulty sleeping. The January 2013 VA examiner also noted that the Veteran reported that since his surgical repair he had continued tenderness at the surgery site and described a pulsing and tearing pain. The Board finds that the Veteran is competent to testify about such symptomatology and that his testimony is credible. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Therefore, the requirement for service connection of a current disability is also met in this appeal. The Board notes that the presumption of soundness under 38 U.S.C.A. § 1111 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply in adjudicating this appeal because the Veteran is claiming an injury and resulting disability due to an event that occurred while serving on ACDUTRA and he has not otherwise established service connection for any hernia disability. Donnellan v. Shinseki, 24 Vet. App. 167 (2010); Smith v. Shinseki, 24 Vet. App. 40 (2010). In this case, the Veteran has the burden to establish that a preexisting hernia disability worsened in service and that such worsening was beyond the natural progression of the disease. Donnellan, 24 Vet. App. at 175. The Board believes the Veteran has carried this burden. The June 2013 VHA report referred to above was based on the evidence produced by the Veteran and concludes that it was at least as likely as not that the preexisting hernia repair worsened during a period of ACDUTRA and that such worsening was beyond the natural progression of the injury. In this case, the Board finds a well-documented record establishing that the Veteran's hernia repair worsened or increased in severity as a result of the ACDUTRA injury in May 1997. The VHA expert noted the Veteran's many very specific statements about symptoms of aggravation of his hernia in the 1997 time frame. Further, the VHA report noted that there is no evidence in the record that the Veteran's hernia recurred prior to May 1997. In addition, after a December 1997 examination he was given a physical profile due to his ventral abdominal hernia. The Board agrees with the VHA expert that the Veteran's history and available documents in the record are consistent with a recurrence of the hernia in May 1997 during a period of ACDUTRA. Thus, based upon the evidence of record, one could reasonably conclude that the ACDUTRA injury did worsen the Veteran's preexisting hernia repair, at least in the context of symptomatology. With respect to the issue of a permanent worsening beyond the normal progression of the disorder, the VHA reviewer also has opined that it is at least as likely as not that the worsening and development of a recurrent hernia was beyond the natural progression of the Veteran's condition. The VHA surgeon noted that the vast majority of abdominal hernias do not recur and that, in this case, the Veteran was able to describe a specific incident he believed at the time worsened his condition. Furthermore, the February 2013 notarized statement of the National Guard medic tended to support the timing of the Veteran's renewed pain. Weighing all of the evidence, the Board finds that the preponderance of the competent evidence of record supports a finding that the Veteran's preexisting hernia repair disability was aggravated as a result of an injury during his May 1997 period of ACDUTRA. In the Board's opinion, based on the reasoning found in the VHA report, the development of a recurrent hernia during this period of ACDUTRA was beyond the natural progression of this disorder. Therefore, service connection for the residuals of hernia repair based on aggravation is warranted in this appeal. ORDER Service connection for residuals of hernia repair on the basis of aggravation is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs