Citation Nr: 1551416 Decision Date: 12/08/15 Archive Date: 12/16/15 DOCKET NO. 09-15 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right inguinal hernia. 2. Entitlement to a rating in excess of 50 percent for an anxiety disorder. 3. Entitlement to a rating in excess of 10 percent prior to July 18, 2014 and in excess of 20 percent since July 18, 2014 for a right knee disability (claimed as a right patellar old fracture, well healed, degenerative joint disease of the right knee). 4. Entitlement to a rating in excess of 10 percent for a left knee disability (claimed as left patellofemoral pain syndrome). 5. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1983 and from July 1984 to February 1989 with subsequent service in the United States Army Reserves with periods of active duty training (ADT) until his February 1992 discharge. Initially, this matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). In December 2009, the Veteran testified before a Decision Review Officer (DRO) at his local RO; a complete transcript of the hearing is of record. In August 2012, when the appeal first reached the Board, the Board remanded the issue of entitlement to service connection for a right inguinal hernia for further development. The Board sought clarification of whether the Veteran's reservist duty included any periods of active duty for training through its request for the Veteran's personnel records from the requisite period. The Board also requested that another VA examination be scheduled to provide a nexus opinion as to whether the right inguinal hernia was service-connected. The prior examination of record conducted in October 2008 discussed the Veteran's medical history and the medical examination of the Veteran, but did not provide a nexus opinion. In October 2012, the RO obtained the additional military personnel records and an updated VA examination report. After the RO completed the Board's remand directives, the appeal returned to the Board in September 2014. Unfortunately, the Board found the October 2012 VA examination opinion inadequate due to the examiner's failure to address the December 1990 service treatment record of a cyst in the right groin area, and whether that condition was related to the current right inguinal hernia. The opinion also failed to discuss whether the hernia was related to the Veteran's service-connected hemorrhoids. Accordingly, the Board remanded the appeal to the RO to obtain an addendum opinion. The addendum opinion was completed in November 2014. Prior to the appeal's return to the Board, the RO marked the opinion as inadequate and returned the claims file to the November 2014 VA examiner to ensure compliance with the Board's remand directives. The examiner provided a corrected opinion in January 2015. The January 2015 opinion was associated with the electronic claims file in March 2015. The claim has since returned to the Board. With the RO having substantially complied with the Board's remand directives, the Board is ready to proceed with the adjudication of the Veteran's service connection claim for a right inguinal hernia. The issues of increased ratings for an anxiety disorder, a right knee disability, and a left knee disability, and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The right inguinal hernia has no etiological relationship to the Veteran's active service, including to the December 1990 right groin cyst and to service-connected hemorrhoids. CONCLUSION OF LAW The criteria for service connection for a right inguinal hernia have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of IADT during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident (CVA) which occurred during such training. 38 U.S.C.A. § 101(21), (24) ; 38 C.F.R. § 3.6(a), (c), (d). ADT includes full-time duty performed for training purposes by members of the National Guard of any State. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). IADT includes duty (other than full-time duty) under sections 316, 502, 503, 504, or 505 of title 32 (32 U.S.C.S. §§ 316, 502, 503, 504, or 505), or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d)(4). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing AD or ADT, from an injury incurred or aggravated while performing IADT, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during a period of IADT. 38 U.S.C.A. §§ 101(24), 106, 1110, 1113. Establishing service connection generally requires (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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may be established on a secondary basis if the evidence establishes that the claimed condition was caused by or aggravated by a service-connected condition. See 38 C.F.R. § 3.310; Buckley v. West, 12 Vet. App. 76, 84 (1998); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Under 38 C.F.R. § 3.310(b), any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the disease, may also be service-connected. In determining whether service connection is warranted for a disability, 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. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has a history of a right inguinal hernia. An inguinal hernia is the herniation of a loop of intestine into the inguinal canal. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 850 (32nd ed. 2012). At an October 2008 VA examination, the Veteran described the events leading to the right inguinal hernia. In July 2008, the Veteran was lifting a plantain tree and began to feel a strong pain in the inguinal area, the groin region. In August 2008, the Veteran underwent laparoscopic surgery at the San Juan VA Medical Center to reduce a large right inguinal hernia involving the cecum and ileum as well as a herniorraphy with an Ethicon ULTRAPRO plug and mesh system to repair the hernia. The Veteran contends the right inguinal hernia occurring in July 2008 is related to his history of hemorrhoids in service. The RO service connected the Veteran's hemorrhoids effective February 9, 1989. To date, the Veteran is the only one making such assertions. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435, the specific issue in this case, whether the Veteran's service-connected hemorrhoids or any other conditions in service are related to his current right inguinal hernia, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Statements as to such underlying pathology is testimony as to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent). Since the Veteran is not competent to provide the etiology of the right inguinal hernia, the Board relied on the probative and competent medical evidence of record. Evidence of a right inguinal hernia is not seen in service, including in May 1979 and May 1984 entrance examinations, an August 1989 separation examination, a July 1989 quadrennial examination, and multiple sick call visits. However, there was evidence of a cyst in the groin area in a December 1990 sick call visit during the Veteran's reservist duty followed by recurrent hemorrhoids. A hemorrhoid is the prolapse of an anal cushion resulting in bleeding and painful swelling in the anal canal. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 842 (32nd ed. 2012). Based on the fact there was no right inguinal hernia seen in service and no treating professional relating the right inguinal hernia to service, VA scheduled the Veteran for an examination in October 2012. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that there was no evidence of a right inguinal hernia while in service. Although the examiner's assessment is factually correct, there were other plausible causes of the current condition, which needed medical evaluation to determine whether the current hernia was related to either the cysts noted in December 1990 or service-connected hemorrhoids. Accordingly, VA scheduled another examination held in November 2014. The November 2014 examiner opined that even though there was evidence of cyst in groin area in 1990, the cyst was most likely secondary to an inflammatory inguinal node from the acute abscess on the buttock rather than the current right inguinal hernia in the groin area. In effect, the cyst was not the cause of the right inguinal hernia, but rather a symptom of a separate abscess on the buttock. The November 2014 examiner also discussed whether the hernia was related to the service connected hemorrhoids. In the November 2014 report as well as his January 2015 addendum opinion, the examiner opined that there was no pathophysiological relationship between hemorrhoids and an inguinal hernia. Ultimately, it was his opinion that the Veteran's inguinal hernia is not caused by, aggravated by or a result of the service connected hemorrhoids. Without any competent and credible opinions to the contrary, the Board finds against service connection. Presently, the only positive evidence supporting service connection are from the Veteran which have been found not competent. The remaining evidence including the service treatment records, post-service treatment records, and the VA medical opinions fail to show the occurrence of a right inguinal hernia during service or its relationship to an occurrence in service including any service-connected disabilities. The appeal is denied. II. VA's Duties to Notify and Assist VA satisfied its notice requirement to the Veteran with respect to his service connection claim in a November 2008 notice. Neither the Veteran nor his representative has pled prejudicial error with regard to timing or content. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As the contents of the notices fully comply with the requirements of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159, the Board concludes that VA satisfied its duty to notify the Veteran. VA met its duty to assist the Veteran by obtaining all available relevant evidence to the Veteran's claim. To that end, the VA obtained the Veteran's service records, including from his reservist service, and post-service treatment records. The Veteran has been presented multiple opportunities for examination of his hernia in October 2008, October 2012, and November 2014 with an addendum opinion provided in January 2015. The Board finds these examinations in their totality to be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiners that performed the examinations were medical professionals and have collectively provided the Board sufficient information to render a decision. The Veteran was also provided a hearing with a Decision Review Officer (DRO) in December 2009. VA also has duties when an RO official conducts a hearing. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). When a DRO conducts a hearing, he or she must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the 2009 hearing, the DRO specifically addressed the Veteran's claimed service connected disability by asking the Veteran a series of questions to elicit information as to its etiology and level of severity. The DRO also asked the Veteran questions to determine whether additional relevant evidence existed that had not been obtained, such as whether the Veteran had recently received any treatment. There is no indication that the Veteran was prejudiced in any way by the conduct of the DRO hearing. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. Since neither the Veteran nor his representative made VA aware of any other relevant evidence that would need to be obtained, the Board finds that no further development is required. Appellate review proceeded without prejudice. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for a right inguinal hernia is denied. REMAND In a January 2015 rating decision, the RO denied the Veteran (1) a rating in excess of 50 percent for an anxiety disorder, (2) a rating in excess of 10 percent prior to July 18, 2014 and in excess of 20 percent since July 18, 2014 for a right knee disability, (3) a rating in excess of 10 percent for a left knee disability, and (4) a TDIU. In April 2015, the Veteran submitted a notice of disagreement, which confers the Board jurisdiction over these matters. However, the RO has yet to issue the Veteran a statement of the case (SOC) regarding these issues. Where a notice of disagreement is filed but a statement of the case has not been issued, the Board must remand the claim to the RO to direct that a statement of the case be issued. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran is reminded that, to vest the Board with jurisdiction over an issue, a timely substantive appeal must be filed after receiving the statement of the case. Accordingly, the case is REMANDED for the following action: Issue the Veteran a statement of the case pertaining to matters adjudicated in the January 2015 rating decision. The Veteran and his representative should be advised of the time limit in which to file a substantive appeal (VA Form 9). Only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs