Citation Nr: 1802206	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  15-12 111A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for recurrent incisional hernia, surgically resolved with residual scar.

4.  Entitlement to service connection for a lumbar spine disorder, claimed as back pain with muscle spasms.


REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

S. Ferguson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1959 to June 1963, with subsequent service in the National Guard and Reserves including multiple periods of active duty for training (ACDUTRA).

This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2011, December 2012, and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

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).

The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and a lumbar spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

The preponderance of the evidence supports a finding that the Veteran's incisional hernia, surgically resolved with scar, was incurred during a period of active duty service.






CONCLUSION OF LAW

The criteria for service connection for an incisional (ventral) hernia, surgically resolved with scar, have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303.


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he incurred an incisional hernia while on active duty in the U.S. Air Force Reserves, and underwent surgery to correct the condition.  In his April 2010 Application for Compensation and/or Pension, the Veteran indicated that he served on active duty in the Air Force from September 1959 to June 1963, that he served in the National Guard from 1964 to 1966, and that he served in the Air Force Reserves from 1967 to 1984.  The record indicates he was ultimately recommended for separation or reassignment in June 1985 due to "hernia and small peptic ulcer."

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 

Under 38 U.S.C. § 101(24) "active military, naval, or air service includes-active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty; and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training." 

For the purposes of determining service connection based on Reserve service, ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the Reserve components.  38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c).  Annual two-week training is an example of ACDUTRA.  Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA.  38 U.S.C. §§ 101(24), 106, 1110, 1131. 

The law provides for certain evidentiary presumptions to assist veterans in establishing service connection for a disability, such as the presumption of soundness.  However, the presumption of soundness does not apply to periods of service characterized as ACDUTRA.  See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010); see also Acciola v. Peake, 22 Vet. App. 320 (2008).  In addition, when a claim is based on a period of ACDUTRA, the presumption of aggravation is not applicable, even if the claimant has achieved "veteran" status during a prior period of service.  Smith v Shinseki, 24 Vet App 40, 48 (2010). 

The record establishes the presence of a current disability.  The Veteran's service treatment records from his service in the Air Force Reserves indicate that he underwent surgery for an incisional hernia in July 1982, and that the hernia reoccurred in May 1984.  Although prior examinations for entrance into service in the Reserves as early as 1974 note a mid-line scar related to having his gall bladder removed, the examinations present in the record prior to 1982 were all absent of any indication that the Veteran ever had a hernia.  The record further indicates that the Veteran again had surgery to correct a recurrent incisional hernia in 2007.  In a September 2010 VA examination, the examiner diagnosed the Veteran with a recurrent incisional hernia, surgically resolved with residual pain.  The examiner opined that it was at least as likely as not that the condition was caused by or the result of hernia surgery during military service.  

However, the RO denied the claim for service connection in a May 2011 rating decision, reasoning that the incisional hernia occurred in July 1982 and there were no records indicating that the Veteran was on active duty service during that time.  The RO cited "military orders" which did not show a call to service during this timeframe.  

After a thorough review of the evidence of record, the Board finds that in spite of efforts by VA and the Veteran to obtain records evidencing his periods of active duty service while in the National Guard and Reserves, the available records covering these periods appear to be incomplete.  Although the evidence does not indicate the specific periods during which the Veteran was called to active duty in 1982, service treatment records show that he underwent surgery for the incisional hernia in July 1982.  A July 1982 clinical record also noted that the Veteran was "AF reserve active duty" and indicated Veteran discovered an abdominal "knot" in the middle of March and was referred to the surgery department for further evaluation of a hernia.  The surgery to correct the hernia was performed shortly thereafter at the USAF Hospital, Tyndall AFB, Florida.  Further, an August 1982 Line of Duty Determination indicated that an Air Force medical officer recommended a finding that the incisional hernia condition occurred in the line of duty, and the Veteran's immediate commander concurred with the recommended finding. 

Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that the medical and lay evidence of record supports a finding that the he incurred an incisional hernia, and had surgery to correct the hernia, during a period of active duty service or ACDUTRA.  Accordingly, entitlement to service connection for an incisional hernia, surgically corrected with residual scar, is warranted.


ORDER

Entitlement to service connection for a recurrent incisional hernia, surgically resolved with residual scar, is granted.


REMAND

The Veteran also contends that service connection is warranted for bilateral hearing loss and tinnitus due to acoustic trauma related to noise from welding while in the military, and that service connection is warranted for a lumbar spine condition due to an in-service incident.

In a November 2012 VA examination, the examiner indicated that the Veteran had a diagnosis of bilateral sensorineural hearing loss.  The examiner opined that it was less likely than not that his bilateral hearing loss was related to active duty service, providing the rationale that his separation physical was well within normal limits.  However, it does not appear that the examiner considered all relevant evidence of record in making his determination.  Reserves enlistment examinations from 1974 and 1976 show that the Veteran's hearing worsened in the interim period, and an enlistment examination from 1977 specifically notes hearing loss, although not disqualifying.  

The examiner also indicated that the Veteran did not have a diagnosis for tinnitus based upon the same examination referenced above.  As the Board determined the examiner failed to adequately consider all of evidence of record in forming the basis of his opinions rendered in the examination regarding hearing loss, any opinions formed regarding tinnitus would likewise be based upon inadequate consideration of the record.  Therefore, an additional examination is needed regarding both hearing loss and tinnitus which considers all relevant evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Veteran was also afforded a VA examination in February 2014 related to his claim for entitlement to service connection for a lumbar spine disorder.  The examiner diagnosed him with lumbar spine arthrosis and determined that it was less likely than not that the disorder was related to active duty service.  Specifically, the examiner noted that the Veteran's single documented incident of injury to his back in 1982 would not likely lead to the diagnosed disorder.  However, as noted above, the Veteran's records related to his periods of active duty service in the National Guard and Air Force Reserves appear to be incomplete.  Accordingly, an addendum medical opinion which considers any additional relevant evidence obtained upon remand may be necessary.  Id.

Although VA and the Veteran have made efforts to obtain all relevant records related to his periods of active duty service in the National Guard and Reserves, VA has a duty to assist which includes making as many requests as necessary to obtain records in government custody unless it is concluded that they do not exist or that further requests would be futile.  38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159 (c)(2).  The claimant shall be notified if they cannot be or are not obtained.  38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1).  The record does not indicate that VA has made a formal finding that no additional records related to the Veteran's periods of active duty service with the National Guard and Reserves exist or that any further requests would be futile.  Therefore, VA must obtain any such outstanding records upon remand or, if appropriate, make a formal finding that no such records exist or that any further requests would be futile and include it in the record.

The AOJ should also obtain any outstanding VA treatment records and request that the Veteran provide the details concerning any outstanding private treatment records related to the issue being decided herein.  The AOJ should have the Veteran submit the necessary authorizations required to obtain any such records.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain and associate with the claims file any outstanding post-service VA treatment records.

2.  After obtaining any necessary authorizations from the Veteran, obtain and associate with the claims file any relevant, outstanding private treatment records.  

3.  Attempt to obtain the Veteran's complete personnel records from his periods of service in the National Guard and Air Force Reserves from all appropriate sources, including from the NPRC and DPRIS, as well as any other appropriate repository.  If the Veteran's records are unavailable after making all appropriate requests, issue a formal finding documenting the unavailability of such records and inform the Veteran of such unavailability.

4.  After associating all outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed hearing loss and/or tinnitus.  The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., 50% or greater) that any diagnosed hearing loss and/or tinnitus was caused or aggravated by the Veteran's military service, to include his periods of ACDUTRA in the National Guard and Air Force Reserves.  The claims file should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report.  The examiner should specifically address the Veteran's assertion that his hearing loss was related to acoustic trauma from welding while in the military.

5.  If additional medical evidence pertaining to a lumbar spine disorder is obtained, obtain an addendum opinion from the VA examiner who provided the February 2014 VA medical opinion, or another appropriate medical professional if the examiner is unavailable.

If an examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

The complete bases for all medical opinions must be provided.

4.  The AOJ should then readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished an SSOC and provided an appropriate opportunity to respond before the claims folders are returned to the Board for further appellate action.

The appellant 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).




______________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs