Citation Nr: 1804391 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-11 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hernia, to include umbilical and ventral hernias. 2. Entitlement to service connection for back disability (claimed as back problems), claimed as secondary to hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to February 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, in which, the RO, inter alia, denied service connection for bilateral hearing loss, back problems, and hernia. The Veteran timely appealed. Jurisdiction was subsequently transferred to the RO in Detroit, Michigan. The Veteran testified at a hearing before the Decision Review Officer in December 2012 and a copy of the hearing transcript is of record. In August 2017, the Board granted the claim for service connection for bilateral hearing loss and remanded the remaining claims for further development and adjudicative action. The case has been returned to the Board for further appellate review. At that time, the Board recharacterized the claim, as reflected on the title page consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A hernia disability, to include umbilical and ventral hernias, did not manifest in service, and is not otherwise related to service. 2. A back disability is neither caused nor aggravated by service connected disease or injury. CONCLUSIONS OF LAW 1. A hernia disability, to include umbilical and ventral hernias, was not incurred in or aggravated in service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303 (2017). 2. A back disability was not incurred in or aggravated by the Veteran's military service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In July 2017, the Board remanded the Veteran's claim for additional development, to obtain an additional medical opinion, which was obtained in October 2017, thus there has been substantial compliance with the Board's remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the general service connection principles noted above, veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be established for a disability that is either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a)-(b); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran contends that he experienced symptoms of his hernia during service, when he was carrying and putting heavy rotors on. He reported having bad stomach pain and that he was diagnosed with acute gastritis. He also reported that he pushed on his stomach, which helped relieve pain, and that he had a "knot" on his stomach that grew bigger as time passed. The Veteran asserts his back disability is secondary to his hernia. An October 1965 service treatment record (STR) reflects the Veteran presented with epigastric distress, late afternoon and with meals over a two month period. November 1965 and February 1966 STRs reflect the Veteran was diagnosed with gastritis. April through June 1966 STRs reflect the Veteran was also treated with Bismuth Subcarbonate, CO3, for gastric distress. A May 1966 reflects the Veteran had a peptic ulcer and acute gastritis. In the February 1967 separation examination, the Veteran was diagnosed with gastritis. In the contemporaneous report of medical history, the Veteran reported having or having had frequent indigestion and stomach, liver, or intestinal trouble. A March 2014 request for information report indicates that morning reports from the 8th Army Field Hospital in Vietnam reflects the Veteran was treated for stomach pain (acute gastritis). A September 1991 private medical letter indicates the Veteran was symptomatic for umbilical hernia and that he was scheduled for surgical repair. A March 2014 medical letter from Dr. R.M. indicates the Veteran had surgery in 1998 and that all records were destroyed. In a December 2003 private treatment record, the Veteran reported he first had an umbilical hernia about thirty years ago in the Army and that it was not repaired until about fifteen years ago. He reported he had a recurrence with repair and a fourth operation in which the previous mesh was removed and he has since developed another recurrence. A physical examination revealed an 18cm bulge to the left side of the umbilicus. An x-ray revealed small bowel obstruction. The Veteran was diagnosed with large recurrent abdominal incisional hernia. He underwent an abdominal incisional hernia repair with subfasical Gore-Tex mesh reinforcement. A December 2004 private treatment record reflects the Veteran noticed a new bulge below the last repair. On exam, he was found to have a small recurrent in the inferior margin. He underwent an additional operation at that time for repair. The Veteran was afforded a VA examination in August 2009. The VA examiner noted that the Veteran reported having pain in his back due to his ventral hernia that resulted in his core muscles being weaker. The examiner noted he was not treated for a hernia while on active duty but the Veteran stated he had these same symptoms while on active duty. The examiner noted the Veteran was not treated for a ventral hernia while on active duty or within a year of discharge from active duty. The examiner explained the Veteran's body mass index (BMI) was 32.37 percent and noted the Veteran reported his weight had been stable for over ten years. The examiner concluded the Veteran's BMI indicates he was obese, which was the number one cause of degenerative disc disease to the lumbar spine, as well as the Veteran's advancing age. December 2010 and March 2012 private medical letters from Dr. D.D. indicates that the Veteran recurrent ventral hernia prevent him from exercising his core muscles, causing weakness and opined that it is a significant cause of his current back problems. In an October 2017 VA opinion, the physician explained that a hernia is defined as an abnormal protrusion of intra-abdominal tissue (muscle) through a fascial defect in the abdominal wall. Therefore, the mechanical separation of the intra-abdominal tissue due to a defect of the abdominal fascia allows for abnormal protrusion of peritoneal sac and visceral contents and is etiologically, anatomically and pathophysiologically different from the digestive tract inflammation of the lining of the stomach. The examiner indicated the Veteran is a credible witness and is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology, and reports of injuries, and that the Veteran's lay statements were considered in formulating the medical opinion. She opined it is less likely than not that the umbilical and ventral hernias had their onset during service or were otherwise casually or etiologically related to service, to include any symptoms manifested during service, to include as diagnosis of gastritis or reports of frequent indigestion and stomach trouble, as well as the Veteran's contention as to continuity of these symptoms and/or reports of a "knot" in his stomach. She explained the Veteran entered service at 145 lbs. The February 1967 separation examination was negative for subjective complaints and/or any objective clinical evidence to support the physical appearance of an umbilical and/or ventral hernia. Alternatively, the Veteran asserted to frequent indigestion and stomach troubles. The Veteran's weight increased to 160 lbs. In retrospect, the active duty medical records clearly and unmistakably document the Veteran's gastric distress with peptic ulcer and epigastric symptomatology. Specifically, in October 1965, the Veteran presented with epigastric distress, late afternoon and with meals over two month period. In November 1965 and February 1966, the Veteran was diagnosed with gastritis. On April 11/12, 1966, April 25, 1966, May, 21, 1966, June 18, 1966, and June, 28 1966, the Veteran was also treated with Bismuth Subcarbonate, (BiO) 2CO3, for gastric distress. Clinically, there was signs and symptoms related to epigastric burning (exasperated by eating spicy foods), and belching. On physical examination, the abdomen was soft, flat, and without masses. There were no clinical findings related to umbilical and/or ventral hernias and/or associated back pain. On April 11, the Veteran stated that he "has been having trouble since October 1965." Alternatively, all clinical examinations were negative for subjective complaints and/or any objective clinical evidence to support the physical appearance of an umbilical and/or ventral hernia and/or back pain. On May 9, 1966, the Veteran presented with mild gastritic burning for 6-8 months and aggravated by most foods. The diagnosis was consistent with acute gastritis. The Veteran was hospitalized for observation for peptic ulcer. The upper GI series and physical examination were silent for any objective medically and/or anatomically-based, clinical evidence to support an abnormal protrusive mass through the intra-abdominal wall. For these reasons and with the understanding that the mechanical separation of the intra-abdominal tissue due to a defect of the abdominal fascia allows for abnormal protrusion of peritoneal sac and visceral contents is etiologically, anatomically, and pathophysiologically different from the digestive tract inflammation of the lining of the stomach, it is less likely than that the Veteran's claimed hernia, to include umbilical and ventral hernias, are related to military service because of the lack of any objective, medically-based, clinical evidence to support the diagnoses of umbilical and/or ventral hernia while on active duty. Thus, it is less likely than not that the umbilical and ventral hernias had it onset during service or was otherwise casually or etiologically related to service, to include any symptoms manifested during service, to include as diagnosis of gastritis or reports of frequent indigestion and stomach trouble, as well as the Veteran's contention as to continuity of these symptoms and/or reports of a "knot" in his stomach because the signs and symptoms of the Veteran's active duty digestive condition related to inflammation of the gastric mucosal lining, rather than a defect of the abdominal fascia that allows for abnormal protrusion of peritoneal sac and visceral contents associated with umbilical or ventral hernias. Second, the physician explained the presumptive period medical records were reviewed with care and consideration. The records were negative for subjective complaints and/or objective medically and anatomically-based, clinical evidence to support umbilical and/or ventral hernias and/or back pain. Therefore, it is less likely than not that the umbilical and ventral hernias had it onset during service or was otherwise casually or etiologically related to service, to include any symptoms manifested during service. Third, the Veteran worked as a lift truck operator until his retirement. In 1998, approximately 30 years following separation, the Veteran underwent the first of four unsuccessful operations to close a large and recurrent abdominal hernia. In December 2004, the Veteran was seen in the Surgical Clinic at the University of Michigan Health System for follow-up , two weeks after undergoing repair of a small recurrent incisional hernia and second placement of a small subfascial mesh resulting from a 2003 re-recurrent and large incisional hernia. The Veteran weighed approximately 215 lbs. Therefore, it is at least as likely as not that the Veteran's claimed umbilical and ventral hernias are related to his body habit, occupational post-service profession of employment and obesity. For these reasons, the physician opined it is less likely than not that the umbilical and ventral hernias had it onset during service or was otherwise casually or etiologically related to service, to include any symptoms manifested during service but is at least as likely as not related to an anatomical separation of the intra-abdominal tissue due to a defect of the abdominal fascia that allows for abnormal protrusion of peritoneal sac and visceral contents, secondary to post service occupation and life-style choices as well as increased weight gain (obesity) that resulted in excessive weakness to the ventral abdominal wall and defect formation with anterior herniation of mass protrusion of visceral moieties. With regard to the claimed back disorder, the physician noted that review of the active duty records were negative for subjective complaints and/or objective medically and/or orthopedically-based, clinical evidence to support back disability (claimed as back problems), claimed as secondary to hernia. The records were also negative for subjective complaints and/or objective medically and/or orthopedically-based, clinical evidence to support back disability (claimed as back problems), claimed as secondary to hernia. Alternatively, she agreed in full accordance with the Dr. D.D.'s opinions that "he has had recurrent ventral hernias that prevent him from exercising his core muscles, causing weakness, and contributing to back pain." However, she concluded, the ventral and umbilical hernias are less likely than not related to active military service, therefore, it is less likely than not that the Veteran's claimed condition is related to his service. Upon review of the record, the Board finds that the competent evidence demonstrates the absence of nexus between the currently diagnosed umbilical and ventral hernias and the Veteran's active duty service. Both the August 2009 and October 2017 VA opinions contained detailed explanations of the reasons for their conclusions based on an accurate characterization of the evidence of record and these negative nexus opinions are therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In the October 2017 opinion, the physician explained that the Veteran's current umbilical and ventral hernias were anatomically different from the in-service digestive condition related to inflammation of the gastric mucosal lining in service, rather than a defect of the abdominal fascia that allows for abnormal protrusion of peritoneal sac and visceral contents associated with umbilical or ventral hernias. She further explained that no such protrusions were observed on physical examination during service and that the Veteran's umbilical and ventral hernias are related to his obesity and post-service occupation consistent with the August 2009 examiner's opinion. Moreover, there is no contrary medical opinion in the record. The weight of the medical evidence is thus against the claim for service connection for umbilical and ventral hernias. The Board has also considered the lay assertions of record, including the Veteran's contentions in support of a nexus between his umbilical and ventral hernias and service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (layperson competent to opine on some matters of diagnosis and etiology, specifically, those that do not involve complex medical questions). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the Veteran's statements regarding whether his ventral and umbilical hernias are due to his military service constitute testimony as to an internal medical process which 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. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); 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"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Veteran's statements are therefore not competent in this regard. To the extent that the Veteran's statements are competent, the Board finds that the specific, reasoned opinions of the trained healthcare professionals in August 2009 and October 2017 VA opinions are of greater probative weight than the Veteran's more general lay assertions, as they also addressed his assertions. Turning to the claimed back disorder, claimed as secondary to the Veteran's umbilical and ventral hernias, because the Board herein denies service connection for such disabilities, there is no legal basis for granting service connection for a back disorder. Here, the private medical opinions and the VA clinicians opined that his back pain is related to his ventral and umbilical hernias. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection, pursuant to 38 C.F.R. § 3.310(a), for a secondary condition. Thus, the matter of service connection for a back disorder as secondary to umbilical and ventral hernias is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the foregoing reasons, the preponderance of the evidence is against the claims for entitlement to service connection for umbilical and ventral hernias and a back disorder on a secondary basis as a matter of law. The benefit of the doubt doctrine is thus not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hernia, to include umbilical and ventral hernias, is denied. Entitlement to service connection for back disability (claimed as back problems), claimed as secondary to hernia is denied. _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs