Citation Nr: 1603675 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 11-19 765 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for left ventral hernia and left inguinal hernias, status post repair. 2. Entitlement to service connection for an anxiety disorder. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for status post cholecystectomy. 5. Entitlement to service connection for residuals of prostate cancer, status post prostatectomy with urinary incontinence and sexual dysfunction. 6. Entitlement to an initial compensable rating for residuals of an appendectomy scar. 7. Entitlement to an initial compensable rating for right ear hearing loss. 8. Entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities. REPRESENTATION Appellant represented by: Karl Truman, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 1979. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 2009 rating decision by the Louisville, Kentucky, Regional Office (RO). On January 13, 2014, the Veteran and his spouse appeared at the Louisville RO and testified at a videoconference hearing before the undersigned, sitting in Washington, DC. A transcript of that hearing has been uploaded into the Virtual VA eFolder. At the hearing, the Veteran submitted additional evidence for which he provided written waiver of RO review under 38 C.F.R. § 20.1304 (2015). The Board has reviewed the Veteran's physical claims files, as well as the Veteran's Virtual VA and VBMS efolders to ensure a complete review of the evidence in this case. The issues of entitlement to service connection for an anxiety disorder and entitlement to a compensable evaluation for an appendectomy scar are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left ventral and inguinal hernias developed many years after service, are not otherwise attributable to military service, and were not caused or aggravated by service-connected disability. 2. At a January 2014 Board hearing, and prior to the promulgation of a decision, the Veteran requested withdrawal of the issues of entitlement to service connection for left ear hearing loss, service connection for status post cholecystectomy, service connection for residuals of prostate cancer, status post prostatectomy with urinary incontinence and sexual dysfunction, entitlement to an initial compensable rating for right ear hearing loss, and entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities. CONCLUSIONS OF LAW 1. The Veteran does not have left ventral or inguinal hernias that are the result of disease or injury incurred in or aggravated by active military service, or which are proximately related to service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015). 2. The criteria have been met for withdrawal of the substantive appeal concerning the claims of entitlement to service connection for left ear hearing loss, service connection for status post cholecystectomy, service connection for residuals of prostate cancer, status post prostatectomy with urinary incontinence and sexual dysfunction, entitlement to an initial compensable rating for right ear hearing loss, and entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities; therefore, the Board does not have jurisdiction to consider the merits of the claim. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in December 2008 from the RO to the Veteran, which was issued prior to the RO decision in November 2009. An additional letter was issued in January 2011. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. Neither the Veteran nor his attorney has contended that any evidence relative to the issues decided herein is absent from the record. With respect to the claim of service connection for hernias, the record shows that the Veteran was afforded a VA examination which provided opinions responsive to the legal questions involved in this case; the Veteran does not contend that the examination is inadequate, and the record does not otherwise suggest the examination is legally deficient. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The service treatment records (STRs) indicate that the Veteran was admitted to an emergency room on June 10, 1979, complaining of abdominal pain, nausea, and vomiting; he reported a 3-day history of abdominal pain in the lower right quadrant. The pertinent diagnosis was acute suppurative perforated appendicitis. In August 1979, it was reported that the Veteran was postoperative from appendicitis that had to be reopened at the incision site with suture removal for drainage due to infection. The Veteran reported believing that he had another infection at the incision with a pus pocket. The impression was infection secondary to incision. A separation examination in October 1979 noted an apparently healed appendectomy scar. A treatment note dated in November 1979 noted a finding of wound drainage, with small amount of serous drainage that didn't show infection. The STRs are completely silent with respect to any complaints or findings of a left ventral or inguinal hernia. The Veteran's application for service connection (VA Form 21-526) was received in November 2008. Submitted in support of the claims were private treatment reports dated from June 2005 to October 2008. These records show that the Veteran was admitted to a private hospital in September 2008 with a diagnosis of adenocarcinoma of the prostate. He underwent an uncomplicated robotic prostatectomy. An operative report, dated September 8, 2008, noted that there were extensive adhesions in the right lower quadrant which were consistent with a previous ruptured appendix and appendectomy 20 years prior. Therefore, the procedures performed included lysis of abdominal adhesions. Received in March 2009 were private treatment reports dated from October 2003 to July 2008. These records show that the Veteran was admitted to a hospital in October 2003 with complaints of abdominal pain. He reported having had difficulty with epigastric and right upper quadrant pain for the prior couple of weeks, and that the night prior to admission, he developed an acute onset of severe pain which had been unrelenting. The records note that his previous discharge showed an elevated white blood cell count and that diagnostic testing showed multiple gallstones. Because of continued symptoms, he was referred to the emergency room for evaluation. The Veteran was diagnosed with acute cholecystitis and cholelithiasis, and underwent laparoscopic cholecystectomy. On July 2008, the Veteran was admitted to the hospital with right-sided abdominal pain. In July 2008, he underwent cystoscopy with transurethral prostate biopsy and transrectal ultrasound guided prostate lobe biopsy. Received in June 2009 were private treatment reports, showing that the Veteran was diagnosed with ventral hernia and left inguinal hernia in April 2009; it was noted that the Veteran did an extreme amount of lifting with his job. It was also reported that the Veteran had previously had a right inguinal hernia repair and recently had robotic surgery for prostate cancer. He was admitted to the hospital with the diagnoses of ventral hernia and left inguinal hernia. He underwent open ventral hernia repair with mesh and open left inguinal hernia repair with mesh. The Veteran was afforded a VA examination in November 2009. It was noted that the Veteran had undergone a prostatectomy for prostate cancer in September 2008, which was done robotically. It was noted that the surgery encountered scarring, resulting in the surgery lasting 2 hours longer than usual. The examiner noted that the surgeon was not able to "save the nerves" during the procedure, believed to be due to the fact that the nerves were so scarred. It was noted that the Veteran developed a hernia at the robotic surgery incision site above the umbilicus, and had undergone a repair with patch in April 2009. The examiner noted that the Veteran and his spouse attributed the development of the hernia to the prior appendectomy. The examiner noted that the Veteran underwent a left inguinal hernia repair the same day as the ventral hernia in April 2009, and that the Veteran and his spouse also attributed the left inguinal hernia to the complications of the appendectomy. The examiner noted that the Veteran had to adjust lifting at his work due to the history of hernias. The examiner explained that a hernia is a complication of any incision, but that a hernia is rarely seen after appendectomy because the abdominal wall is very strong in the area of the standard appendectomy incision. The examiner noted that the Veteran developed a ventral hernia at the incision site for the robotic prostatectomy above the umbilicus, and that the records did not indicate that the hernia was in any way related to the intra-abdominal adhesions. The examiner summarized by noting that the Veteran did develop intra-abdominal adhesions related to a ruptured appendix and appendectomy during military service, and that the Veteran likely had peritonitis due to ruptured appendix which put him at higher risk for developing adhesions. The examiner explained that the adhesions were encountered during his 3 surgical procedures, but that there were no apparent current conditions related to the adhesions. The examiner concluded that although the adhesions likely lengthened his surgeries due to the time required to take down the adhesions, his adhesions did not cause the ventral or inguinal hernias, or prostate cancer, prostatectomy, or cholecystitis. Received in November 2011 was a statement from Dr. H. Meiers, dated in October 2011, noting that the Veteran had a history of appendectomy, status post ruptured appendix in 1979. Dr. Meiers noted that the Veteran recently underwent a robotic prostatectomy for prostate adenocarcinoma, and that he was doing well from that procedure. Dr. Meiers noted that the initial dissection was somewhat difficult, but that once he was to the pelvis and to the prostate itself, the procedure went without difficulty. At his personal hearing in January 2014, the Veteran testified that he underwent an appendectomy in June 1979 while on active duty, and that this surgery resulted in substantial adhesions which had continued to cause further complications throughout his lifetime. The Veteran contended that the residuals of the service surgery warranted a 30 percent disability rating. The Veteran testified that although the evidence on file does not reference anxiety, he does experience an anxiety disorder. The Veteran testified that his ventral hernia was caused by the adhesions from his appendectomy, and that the adhesions caused tugging, pulling and sharp stabbing pains. The Veteran's spouse testified that his condition had caused him a lot of stress, which was manifested by headaches. She explained that the doctor who performed the gallbladder surgery in October 2003 indicated that the Veteran had extensive abdominal adhesions from the previous appendicitis and that his organs were all stuck together. She also reported that the doctor who performed the prostate surgery in 2008 noted the presence of extensive lesions from the previous ruptured appendix, and that this doctor also had to remove the adhesions in order to perform his surgery. The Veteran's spouse stated that the hernia popped up two days later. Submitted at the hearing were duplicate operative reports dated in October 2003, September 2008 and April 2009, the findings of which were previously reported. III. Legal Analysis-Service Connection. Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection is also available where a service-connected disability causes or aggravates a claimed disorder. See 38 C.F.R. § 3.310 (2015). A Veteran can attest to factual matters of which she has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person 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), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the 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). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. After careful review of the evidentiary record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a left ventral hernia. The Veteran maintains that he developed a ventral hernia as a result of the adhesions caused by the appendectomy performed in service. In this regard, the Board acknowledges that the Veteran did undergo an appendectomy during service. However, the STRs are negative for chronic residuals of the 1979 appendectomy and the separation examination was negative for any ventral hernia. Moreover, the first documented medical report of a left ventral hernia was in April 2009, close to 30 years after separation from service. With respect to negative evidence, the fact that there were no records of any complaints or treatment for a ventral hernia for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Additionally, the record weighs against a finding of a nexus. The Board has considered the Veteran's statements asserting a nexus between his diagnosed left ventral hernia and his military service. In this regard, the Board notes that the Veteran is competent to report gastrointestinal symptoms that are readily observable through his senses, and do not require medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide an opinion regarding the etiology of his ventral hernia because he lacks the required medical skill and knowledge. The Board finds that the determination of the cause of a hernia, particularly where the individual has undergone surgery in service and unrelated surgeries after service in the area of the hernia, is beyond the capabilities of a layperson. The only competent medical evidence of record concerning nexus is the November 2009 VA examination report, wherein the examiner stated that hernias are a complication of any incision, but in the case of appendectomy, hernias are seldom seen because of the strength of the abdominal wall at the standard appendectomy incision site. The examiner noted that the Veteran developed a ventral hernia at the incision site for the robotic prostatectomy above the umbilicus in September 2008. The examiner stated that the records do not indicate that the hernia was in any way related to the intra-abdominal adhesions. In summary, the examiner explained that the Veteran did develop intra-abdominal adhesions related to a ruptured appendix and resulting appendectomy in service, that the Veteran likely had peritonitis due to ruptured appendix which put him at higher risk for developing adhesions, that adhesions were encountered during the 3 surgical procedures, but that there were no apparent current conditions related to the adhesions. The examiner concluded that the adhesions did not cause his ventral or inguinal hernias. The opinion is considered probative as it is definitive, based upon a complete review of the Veteran's claims file, and support by detailed rationale. Accordingly, the opinion is found to carry significant weight. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995. In short, the only competent evidence of record indicates that the hernias did not originate in service, and are not proximately related (i.e., caused or aggravated) by service-connected disability. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a left ventral hernia and inguinal hernia, and the claim must be denied. The benefit-of-the-doubt doctrine is, therefore, not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. IV. Legal Analysis-S/C for left ear hearing loss, status post cholecystectomy, and residuals of prostate cancer, higher evaluation for right ear hearing loss, and entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2014). Withdrawal may be made by the Veteran or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the Veteran personally, without the express written consent of the Veteran. 38 C.F.R. § 20.204(c) (2015). By a rating decision dated in November 2009 rating decision, the RO granted service connection for right ear hearing loss, rated as 0 percent disabling, effective November 20, 2008. That rating action also denied service connection for left ear hearing loss, status post cholecystectomy, residuals of prostate cancer, status post prostatectomy with urinary incontinence and sexual dysfunction, and entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities. The Veteran perfected an appeal of the claims by filing a substantive appeal (VA Form 9) in July 2011. However, at his personal hearing in January 2014, the Veteran indicated that he wished to withdraw the issues listed above. As the Veteran withdrew his appeal as to the issues of entitlement to service connection for left ear hearing loss, service connection for status post cholecystectomy, service connection for residuals of prostate cancer, status post prostatectomy with urinary incontinence and sexual dysfunction, entitlement to an initial compensable rating for right ear hearing loss, and entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of entitlement to service connection for left ear hearing loss, service connection for status post cholecystectomy, service connection for residuals of prostate cancer, status post prostatectomy with urinary incontinence and sexual dysfunction, entitlement to an initial compensable rating for right ear hearing loss, and entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities; those issues are therefore dismissed. ORDER Service connection for left ventral and inguinal hernias is denied. The appeal on the claims of entitlement to service connection for left ear hearing loss, service connection for status post cholecystectomy, service connection for residuals of prostate cancer, status post prostatectomy with urinary incontinence and sexual dysfunction, entitlement to an initial compensable rating for right ear hearing loss, and entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities is dismissed. REMAND Turning first to the claimed anxiety disorder, the Veteran contends that he experiences anxiety related to his medical conditions. The treatment records are silent for any reference to a diagnosed anxiety disorder. Nevertheless, the Veteran and his spouse have testified to persistent symptoms of anxiety. Given this, the Board finds that a VA examination is necessary to determine whether the Veteran does in fact have a psychiatric disorder, and if so, whether such disorder is related to service-connected disability. With respect to the Veteran's claim for an initial compensable rating for residuals of an appendectomy scar, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). At the January 2014 hearing, the Veteran and his attorney argued that the Veteran's symptomatology related to the service-connected residual appendectomy scar have increased in severity since the last VA compensation examination conducted in March 2011. At the hearing, the Veteran testified that he has to wear his clothes differently due to the appendectomy scar. In addition, in the Appellate Brief, dated in January 2013, the Veteran's attorney argued that the March 2011 examination was cursory and inadequate as it failed to fully investigate the Veteran's comments regarding the scars that: "they move normally to him, but he has lived with this for so long he isn't sure what is normal what is not." The attorney maintained that a more detailed evaluation of the scar should have been done. In light of the assertions made by the Veteran and his representative, the Board finds that the Veteran should be afforded another examination to ascertain the severity of his appendectomy scar. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should request the Veteran to identify all medical care providers, including VA as well as non-VA, who may possess additional records referable to treatment for his claimed anxiety disorder and for his service-connected appendectomy scar since March 2011. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate any outstanding records with the claims file. The Veteran and his attorney must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ also should have the Veteran scheduled for a VA examination to assess the current severity of the service-connected scar status post laparoscopy and hysteroscopy surgery, including appendectomy. Access to the claims folder as well as any electronic files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The findings reported should specifically include whether the scar is deep or superficial, the dimensions of the scar, whether the scar is painful or unstable, and whether it causes any impairment of function separate from that due to the underlying pathology for which the surgery was performed. The examiner must explain the rationale for all opinions. 3. The AOJ should also schedule the Veteran for a VA psychiatric or psychological examination by an examiner with appropriate expertise to determine the nature and etiology of any psychiatric disorder present. With respect to any such disorder identified, the examiner must provide an opinion as to whether it is at least as likely as not that the disorder is etiologically related to service, or whether it is at least as likely as not that such disorder was caused or chronically worsened by the Veteran's service-connected disorders. The complete rationale for all opinions offered should be provided. The claims files should be made available to the examiner for review. 4. Thereafter, the AOJ should re-adjudicate the remaining claims on appeal on the basis of all evidence of record and all applicable laws and regulations. If the benefits sought are not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC). Thereafter, the Veteran and his representative should be given the opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. 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 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). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs