Citation Nr: 1757565 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 16-17 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for status post right inguinal hernia repair. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's status post right inguinal hernia repair disability manifested during, or is otherwise etiologically related to, his active military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for his status post right inguinal hernia repair disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must generally show: (1) the existence of a present disability; (2) the 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. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). In the instant case, the Veteran contends that he is entitled to service connection for a status post right inguinal hernia repair disability. As reflected in a December 2011 statement from the Veteran, he first noticed a painful bump on his right side on the day he returned home from service in February 1955, and he has to limit certain activities due to soreness and pain. The Veteran's November 1952 pre-induction report of medical examination and his February 1955 separation report of medical examination indicate that his abdomen and viscera (to include hernia) were clinically evaluated as normal. There were no noted scars, defects, or diagnoses in either report. A March 1955 record of hospitalization from the Brooke Army Hospital reveals that less than one month after his separation from service, the Veteran was admitted with an admitting diagnosis of hernia. The established clinical diagnoses were lymphogranuloma, veneral, inguinal lymph nodes; and lymphadenitis, chronic, inguinal lymph nodes, right, secondary to lymphogranuloma. A right lymphadenectomy, simple, inguinal lymph nodes surgery was performed. In an April 1959 periodic report of medical examination for purposes of Army Reserves service, the Veteran's abdomen and viscera (to include hernia) were noted to be abnormal. Specifically, there was a well-healed right herniorrhaphy scar on the Veteran's right lower quadrant. The examining physician wrote that the Veteran had a herniorrhaphy at age fourteen without complications or sequelae. With respect to the April 1959 report, in his June 2013 notice of disagreement, the Veteran maintained that his hernia did not pre-exist service and that he had hernia surgery in 1955 at the age of twenty-three, not fourteen. According to the Veteran, he sought medical help from a civilian doctor who determined that the hernia was a service-related injury, and he was referred to physicians at an Army hospital, who concurred and treated him at no cost. In a December 2011 private treatment record from Dr. L. Esquivel, the assessments included inguinal hernia. It was noted that the Veteran was status post repair in 1955 and that he related discomfort to the area. There was no noted recurrence. In an April 2016 treatment record from Dr. Esquivel, it was noted that the Veteran noticed a bump one day after discharge and tried to receive treatment at a VA medical center but was turned away due to not having benefits. However, he was diagnosed with a hernia within three weeks of his discharge after seeing a civilian doctor. According to Dr. Esquivel, the Veteran's hernia was likely related to heavy lifting during active military service. Given the Veteran's diagnosis of status post right inguinal hernia repair during the course of the appeal, the first Shedden element of a current disability is met. E.g., Shedden, 381 F.3d at 1167. The Board also finds that the evidence of record supports a finding that the Veteran's status post right inguinal hernia repair disability is etiologically related to his active military service. While the Board recognizes that the April 1959 report of medical examination suggests that the Veteran's hernia repair surgery occurred at age fourteen, this notation appears to be in error. Crucially, there is no indication of hernia or hernia repair surgery in the Veteran's November 1952 pre-induction report of medical examination or his February 1955 separation report of medical examination. As such, it is presumed that the Veteran's abdomen and viscera were in sound condition on entrance into service. 38 C.F.R. § 3.304(b). Although this presumption is rebuttable, VA cannot meet that burden where, as here, the evidence does not clearly and unmistakably show that a disability existed prior to service and that such disability was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096-97 (2004). Instead, based on the Veteran's competent and credible statement, he noticed a painful bump on his right side the day he returned home from service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The record reflects that he had a hernia repair surgery in March 1955, less than one month after separation from service. Moreover, based on the April 2016 treatment record from Dr. Esquivel, the Veteran's right inguinal hernia was likely caused by heavy lifting during his active military service. Given Dr. Esquivel's understanding of the Veteran's condition, and the rationale that she provided, the Board finds Dr. Esquivel's opinion to be fully-informed and reliable. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-04 (2008). Thus, the evidence of record is at least in relative equipoise with respect to the question of whether the Veteran's status post right inguinal hernia repair disability manifested during, or is otherwise etiologically related to, his active military service. See Gilbert, 1 Vet. App. at 54. As the evidence of record is at least in relative equipoise, the benefit-of-the-doubt rule applies, and service connection for the Veteran's status post right inguinal hernia repair surgery disability is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the Veteran's status post right inguinal hernia repair disability is granted. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs