Citation Nr: 1342067 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 07-27 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an umbilical hernia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO's rating action, in pertinent part, declined to reopen a claim for service connection for an umbilical hernia. The Veteran timely perfected an appeal. In July 2010, the Veteran provided testimony at a hearing before the undersigned Acting Veterans Law Judge (VLJ) at the RO. A copy of the hearing transcript is of record and reflects that the Veteran was afforded an extensive opportunity to present hearing testimony, evidence, and argument on his appeal. Subsequently, in October 2010, the Board granted the Veteran's petition to reopen his claim and remanded the issue of service connection for an umbilical hernia for further evidentiary development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file revealed additional medical evidence that has been carefully reviewed by the Board. The issues of entitlement to service connection for surgical scar, secondary to umbilical hernia, as well as entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of umbilical herniorrhaphy have been raised by the record. However, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are REFERRED to the AOJ for appropriate action. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. While he was on active duty, the Veteran underwent surgery to correct an umbilical hernia. 2. During the pendency of this appeal, the Veteran's umbilical hernia recurred; the March 2011 VA examiner's opinion constitutes competent medical evidence that the recurrence was causally related to the Veteran's in-service herniorrhaphy. CONCLUSION OF LAW The criteria for service connection for an umbilical hernia are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As the Board's decision to grant the Veteran's claim of entitlement to service connection for an umbilical hernia is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations regarding this issue. II. Analysis The Veteran contends that he either developed an umbilical hernia during service or that he had a pre-existing hernia that was aggravated, beyond a natural progression, by active duty physical exercises. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. A Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996). The presumption of soundness does not apply when a condition is a congenital or developmental defect, as service connection cannot be granted for such disorder. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993) (noting the difference between defect and disease and further noting that service connection may be granted if the congenital or developmental condition is a disease). However, service connection may be warranted when a congenital defect is subject to a superimposed injury during service. VAOPGCPREC 82-90 (July 18, 1990). The claims file shows that Veteran's enlistment examination was normal, but, in February 1981, the Veteran complained of a "hole in stomach" that was diagnosed as an umbilical hernia. Treatment providers referred him for surgery. The March 1981 surgical record reflects that clinicians diagnosed the umbilical hernia as "congenital," but observed that it had become painful during "strenuous exercise or exertion." Subsequent service treatment records reflect no surgical residuals other than a scar. In October 1983, after separation from service, the Veteran underwent a VA examination that also revealed no recurrence of umbilical hernia. In January 2006, the Veteran wrote to VA and contended that "the umbilical hernia that was repaired when [he] was in the service weakened the upper walls of [his] abdomen." A January 2006 private physician's note reflects that the Veteran reported having observed a bulge between his xiphoid process and umbilicus. Although the physician's examination of the Veteran revealed evidence of a prior umbilical herniorrhaphy with no evidence of recurrence, the physician did acknowledge "there is certainly a possibility he may develop a hernia in the future." In October 2006, the Veteran reported to VA for treatment of an uncomfortable bulge near his umbilicus. VA clinicians diagnosed him with a recurrent umbilical hernia. Later that month, he underwent surgical repair. Subsequent VA treatment notes reflect another recurrence in June 2007 that also required surgical repair. A July 2007 VA treatment note again reflects diagnosis of a recurrent umbilical hernia. The Veteran subsequently contended in an August 2007 letter that the surgical repair completed during service caused his abdominal muscles to weaken. In a February 2011 letter, the Veteran stated that his umbilical hernia had been present since childhood, but did not become symptomatic until his active duty service. VA afforded the Veteran a medical examination in March 2011. The examiner noted that the Veteran stated that the hernia "never gave [him] problems till [he] joined the military." After reviewing the claims file, as well as interviewing and examining the Veteran, the examiner opined that his umbilical hernia was a congenital defect which had not been subject to any injury while he was on active duty. However, the examiner did opine that the Veteran's umbilical hernia had recurred "due to the surgical technique used in the 1980s which weakens the surround[ing] tissues." Multiple medical professionals have diagnosed the Veteran's umbilical hernia as a congenital defect and the Veteran himself has acknowledged in letters to VA and to the March 2011 VA examiner, that it had been present since childhood. As such, the presumption of soundness does not apply even though the defect was not noted during the Veteran's enlistment examination. Monroe, 4 Vet. App. at 514-15; 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). However, as noted above, service connection may be warranted when a congenital defect is subject to a superimposed injury during service. VAOPGCPREC 82-90. Although the March 2011 VA examiner opined that the Veteran's umbilical hernia was not subject to superimposed injury during service, and explained that the in-service symptoms the Veteran had attributed to the hernia were instead manifestations of various gastrointestinal disorders, the examiner also opined that the Veteran's hernia recurred after service as a result of the surgical technique used during service. Essentially, the examiner's opinion reflects that the in-service surgical repair of the hernia was, in and of itself, a superimposed injury that resulted in weakening of surrounding tissue. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993); also see Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Here, the Board finds the opinion of the VA examiner both competent and probative as to the etiology of post-service recurrence of the Veteran's umbilical hernia. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that, with regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact). Although additional medical inquiry could be conducted, under the benefit-of-the-doubt rule, where there exists an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the claimant shall prevail. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). As the claims file does not contain any conclusive evidence to the contrary, the Board finds that the evidence of record is sufficient for a determination as to the issue of service connection. Therefore, service connection for a recurrent umbilical hernia is warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for an umbilical hernia is granted. ____________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs