Citation Nr: 1804456	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  11-08 419	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of service connection for a left hernia disability.  

2.  Entitlement to service connection for a left hernia disability.

3.  Entitlement to a compensable rating for scars, residuals of right hernia repair and left varicocele repair.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

C. Ford, Associate Counsel


INTRODUCTION

The Veteran served active duty in the United States Army from June 1976 to August 1978.

This appeal arises before the Board of Veterans' Appeals (Board) from April 2010 and July 2014 rating decisions in which the Department of Veteran Affairs (VA) Cleveland, Ohio, Regional Office (RO) denied entitlement to service connection for a left hernia disability and continued a noncompensable rating for scars, residuals of right hernia repair and left varicocele repair, respectively.  

In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing.  A copy of the transcript has been associated with the claims file.  

The issues of service connection for a left hernia disability and increased rating for scars, residuals of right hernia repair and left varicocele repair, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  An October 2005 rating decision denied service connection for left inguinal hernia, and the Veteran did not appeal the decision or submit new and material evidence within one year of the decision.  Therefore, that rating decision became final.

2.  The evidence received subsequent to the October 2005 prior final denial of the claim for service connection for left inguinal hernia is new, and is also material because it raises a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

As new and material evidence has been received, the criteria to reopen the claim for service connection for left inguinal hernia have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


ORDER

New and material evidence having been received, the claim of entitlement to service connection for left inguinal hernia is reopened.  To that extent only, the appeal is granted.


REMAND

While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the etiology and nature of the Veteran's left hernia condition and the severity of the Veteran's service-connected scars.

Left Hernia

The Veteran contends that his left hernia is due to his period of service.

VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/ recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  Once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

During the pendency of the claim, the Veteran raised a theory of secondary service connection for the left hernia due to his service-connected right hernia and service-connected left varicocele.  In May 2016, the Veteran was afforded a VA examination.  The examiner provided a negative nexus opinion on the basis of a negative secondary relationship to the Veteran's service-connected right hernia disability.  The examiner also provided a negative nexus opinion on the basis of a negative secondary relationship to the Veteran's service-connected left varicocele disability.

Although the record does not sufficiently show that the Veteran's left hernia is secondary to his service-connected disabilities, the Board will consider all theories of service connection, to include service connection on a direct causation basis.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  At an August 2017 Board hearing, the Veteran stated that he believed that his left hernia disability is related to his right hernia disability and left varicocele disability because they all were incurred from the same in-service incident.  The Board notes that the RO originally denied the Veteran's claim on the basis of no current diagnosis; however, the evidence of record shows that the Veteran has been treated for left hernia.  A December 1983 post-service record indicates that the Veteran's treating physician during service initially suspected a hernia on the Veteran's left side.  There is no medical opinion of record regarding service connection on a direct basis.  Therefore, a remand is necessary.


Residual Scars

The Veteran also contends that the severity of his service-connected scars is such that it warrants a compensable rating.

In a May 2016 VA examination, the examiner noted in the Veteran's history that the Veteran reported constant pain that increased when standing.  He also reported that he felt a pulling pain when getting out of the car.  The examiner determined that the Veteran had a left inguinal region superficial linear scar that was nonpainful and nonadherent, a right inguinal region superficial linear scar that was nonpainful and nonadherent, and an infraumbilical region superficial linear scar that was nonpainful and nonadherent.  In an August 2017 Board hearing, the Veteran stated that he believes his scars pull and tug as if they are adhered to something.  The Veteran further stated that he is in constant pain, using over-the-counter treatments to relieve that pain.  The Veteran stated that the scars are tender to touch, and affect his ability to move.  Finally, the Veteran has stated that his scars have gotten worse since his May 2016 examination.  

Though the examiner noted the Veteran's stated symptoms, the medical opinion provided did not give reasons or bases for such the conclusion reached despite the Veteran's description.  Thus, a remand to determine the Veteran's current level of severity for his service-connected scars is necessary.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his left hernia disability, and the severity of the Veteran's service-connected scars.  The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination.  The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination.  In rendering these opinions, the examiner should consider and discuss the available record, to include the December 1983 post service treatment record and the August 2017 Board hearing transcript.  

The examiner should address the following:

a.  Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left hernia disability was manifested in, caused by, or is otherwise etiologically related to his period of service.

b.  The examiner should identify the number of surgical scars that are residuals of the Veteran's hernia repair and left varicocele repair, describe them, and specify whether each scar is painful and/or unstable. 

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so.

In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include any assertions as to onset and continuity of symptoms.  The examiner should explain the medical basis for the conclusions reached. 

2.  After any additional development deemed warranted, readjudicate the issues on appeal.  If any benefits sought on appeal remain denied, issue a supplemental statement of the case.  After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board.

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. §§ 5109B, 7112 (2012).



_________________________________________________
JENNIFER HWA 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).



Department of Veterans Affairs