Citation Nr: 1418173 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 11-27 044 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right thumb disability. 2. Entitlement to service connection for an umbilical hernia. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The appellant served in the Army National Guard (Guard) from March 1957 to May 1997; he had a period of verified active duty for training from June to August 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the VA RO in in St. Paul, Minnesota. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).) (The issues of entitlement to service connection for a low back disability, a left foot disability, and a right thumb disability are addressed in the remand that follows the decision below.) FINDING OF FACT An umbilical hernia did not have its onset during a period of qualifying military service, and is not otherwise related to any period of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA). CONCLUSION OF LAW The appellant does not have an umbilical hernia that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record that (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These requirements apply to all elements of a claim, including (1) veteran status; (2) existence of a disability; (3) a connection between the military service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Proper notice must be provided prior to the initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, a July 2010 letter notified the appellant of the evidence and information necessary to substantiate his claim, the responsibilities of the appellant and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. This was prior to the initial adjudication of the appellant's claim in October 2010. This letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As such, VA satisfied its duty to notify the appellant. VA has also satisfied its duty to assist the appellant in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and to provide a medical examination or opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All identified, available VA and non-VA records have been obtained and considered. There is no indication or argument that any pertinent medical records remain outstanding with regards to the appellant's hernia claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. A medical examination or opinion is required for a service connection claim when there is: (1) competent evidence of a current disability, or persistent or recurrent symptoms of disability; (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation; (3) an indication that the current disability may be associated with the in-service event, or to another service-connected disability; and (4) insufficient competent medical evidence to adjudicate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The requirement of an "indication" that the claimed disability "may be associated" with the in-service injury is a "low threshold." Types of such evidence 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. Id at 83; Haas v. Shinseki, 22 Vet. App. 385, 388-89 (2009). The evidence of a link between the current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Here, as there is no competent evidence of a current disability, or persistent or recurrent symptoms of disability, an examination is not necessary to satisfy VA's duty to assist As VA satisfied its duties to notify and assist the appellant, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. II. Analysis The appellant is seeking service connection for an umbilical hernia. He asserts that a hernia was incurred due to lifting activities during his Guard service, and that he had surgery for it in 1997. During his testimony at an April 2013 hearing before the Board, it was unclear whether the lifting in question occurred during ACDUTRA or INACDUTRA. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Appellant must show: "(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 or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To make these determinations, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Active military service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred or aggravated in the line of duty, or any period of INACDUTRA during which the appellant was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty prescribed for the Reserves or Guard. 38 U.S.C.A. § 101(23)(A). Here, service connection is not warranted. This is so because medical evidence of record does not show that the appellant has a current disability. A November 2010 report from Dr. R.R. states that the appellant has neither any persistent hernia symptoms nor any associated pain, although he did believe that a hernia had been related to the appellant's Guard service. A review of the appellant's claims file does not reveal any indication of a current hernia or residual disability. Additionally, there is no lay evidence of a current disability. Lay statements may serve to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). At his hearing before the Board, the appellant did not refer to any current disability; he only testified as to how he believed a hernia had occurred as a result of his Guard service, and that it had been surgically repaired in 1997. The appellant's claims file also contains no lay evidence suggestive of a current disability. Accordingly, without evidence of a current disability, the Appellant is not entitled to service connection. 38 C.F.R. § 3.303(a). ORDER Service connection for an umbilical hernia is denied. REMAND The Board finds that additional development is required to determine the Appellant's entitlement to service connection for his other claimed disabilities. First, a VA examination is necessary concerning the appellant's claims of service connection for a low back disability and left foot disability, the latter claimed as secondary to the former. At his hearing before the Board, the appellant testified that he injured his back in 1971 while lifting artillery ammunition. He has also provided private medical reports indicating he has a current low back disability, and also a left foot disability that is due to his low back disability. VA must provide a medical examination when there is evidence of a current disability, evidence that an injury occurred in service, an indication that the appellant's disability may be associated with his service, and insufficient competent medical evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006). At his hearing before the Board, the appellant testified that when he first injured his back in 1971, he sought treatment at Little Falls, Minnesota. These records need to be sought. Finally, a new examination is warranted with regards to the appellant's claim of service connection for a right thumb disability. The RO appears to have developed and analyzed the appellant's claim as being one just for arthritis. However, records and testimony provided by the appellant indicate that the issue is best characterized as any thumb disability, including onychomycosis and/or onycholysis, and the examination did not discuss these ailments. Therefore, a new examination is warranted. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007). Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Request the appellant to identify any outstanding records with regards to treatment in 1971 for any low back ailment, to specifically include any treatment facility in Little Falls, Minnesota, and to complete the necessary form (VA Form 21-4142) for VA to obtain any non-VA records. After obtaining the necessary authorizations, request copies of any records. All efforts to obtain the above-described records must be documented in the claims file. Such efforts shall continue until federal records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. Reasonable efforts are necessary for non-federal records. If any records cannot be obtained after appropriate efforts have been expended, the appellant should be given proper notice and allowed an opportunity to provide such records. 2. Following completion of the above-requested actions, schedule VA examinations concerning: A. Any low back disability and left foot disability. The examination should include all necessary diagnostic testing and evaluation. The claims file, including a complete copy of this remand, must be made available for review. Based on review of the record and examination of the appellant, the examiner should respond to the following: i. Is it at least as likely as not (probability of 50 percent or more) that a current low back disability is attributable to a period of ACDUTRA or INACDUTRA? ii. Is it at least as likely as not that any current left foot disability was caused by a service-connected low back disability? iii. If not, is it at least as likely as not that any current left foot condition was aggravated (meaning permanently worsened beyond its normal progression) by a service-connected low back disability? If aggravation is found, please identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the low back disability by the service-connected disability. In responding to the above, the examiner should provide an explanation that takes into account all lay and medical evidence, including the testimony by the appellant that he injured his back during military training in 1971. The examiner should give medical reasons for accepting or rejecting the lay statements regarding the in-service injury and continued symptoms since. B. Any right thumb disability. The examination should include all necessary diagnostic testing and evaluation. The claims file, including a complete copy of this remand, must be made available for review. Based on review of the record and examination of the appellant, the examiner should respond to the following: Is it at least as likely as not that a right thumb disability, to include onychomycosis and/or onycholysis, is attributable to a period of ACDUTRA or INACDUTRA? In responding to the above, the examiner should provide an explanation that takes into account all lay and medical evidence, including records contained in the appellant's claim's file. The examiner should give medical reasons for accepting or rejecting the lay statements regarding any in-service injury and continued symptoms since. If any examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If a benefit sought is not granted, furnish a Supplemental Statement of the Case and afford the appellant a reasonable opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs