Citation Nr: 18141245 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-23 715 DATE: October 10, 2018 REMANDED Entitlement to service connection for residuals of right inguinal hernia surgery, to include right leg weakness and effect upon sexual activities is remanded. REASONS FOR REMAND The Veteran had active service in the Marines from July 1974 to July 1978. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran’s May 2016 VA Form 9, Appeal to the Board, executed on May 10, 2016, he requested a Board hearing at the RO (commonly called a Travel Board hearing). On May 10, 2016, the Veteran executed a form stating that he desired a hearing before an RO hearing officer. By letter of May 26, 2016, the Veteran was notified that he had been placed on a waiting list of those who desired in-person hearings before the Board. In a May 26, 2016, Report of Contact it was noted that the Veteran desired an RO hearing prior to a Travel Board hearing. Received on June 6, 2016, was the Veteran’s decision to withdraw his request for a Travel Board hearing, and in which he requested that his appeal be forwarded to the Board. In VA Form 27-0820, Report of General Information, of February 27, 2017, it was stated that as to the Veteran’s “NOD dated 7/6/2015” he desired to withdraw his current request for a hearing, and asked that “a local hearing be scheduled.” Received on March 6, 2017, was a March 3, 2017, handwritten statement from the Veteran stating that he withdrew his request for a Travel Board hearing and requested that a decision be made based on the evidence of record. In a FAX received on June 22, 2017, the Veteran reiterated his request that his case should be forward to the Board for a decision. From the foregoing, it is clear that the Veteran no longer desires hearing, either before RO personnel or a Travel Board hearing. In other words, his prior requests for a hearing have been withdrawn. 1. Entitlement to service connection for residuals of right inguinal hernia surgery, to include right leg weakness and effect upon sexual activities is remanded. Although the Veteran’s service personnel records are on file, the only service treatment record (STR) on file is the report of the examination for service entrance in July 1974, which was negative, for the claimed disability. Where service medical records are missing, the absence of medical corroboration may not be equated as 'negative” evidence. Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) and Earle v. Brown, 6 Vet. App. 558, 561 (1994). If a veteran's service medical records are unavailable, the VA's duty to assist, the duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). This does not lower threshold for an allowance of a claim. In other words, the legal standard for proving a claim is not lowered, rather, the Board obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46, 51 (1996). In the Veteran’s original claim for VA disability compensation in July 1983 he requested compensation for stomach ulcers, which began in July 1980, and arthritis which began in April 1977. A July 1983 note from a physician of the Wahiawa Clinic states that the Veteran had recurrent epigastric pain with weight loss of over 40 lbs. He often has soft stool. He deserves a gastroscopy work -up with possible biopsy. He could not currently work. Similarly, of record are private clinical records of Dr. C. Miyaki of 2007 and 2008 which show that the Veteran had hemorrhoids and reflux. None of these records make any mention of any right inguinal hernia, past history of right testis surgery, or any residuals of such surgical procedures. In the Veteran’s January 2014 claim, VA Form 21-526EZ, for service connection he stated that he had “right testis hernia” and surgery on his “right testis.” He stated that “part of right testis cut off” and as a residual he had weakness of his legs and it “affects sexual activities.” In the Veteran’s July 2015 VA Form 21-0958, Notice of Disagreement, he reported that he had had an injury and surgery in the early stage of his basic training in 1974, only a few weeks after beginning his basic training. He had pain and swelling of his right testis, because of which he was sent to a military hospital. On the day of his surgery he was given spinal anesthesia. After his surgery he was placed on light duty for a while, and when he felt better he went back to boot camp. This had impacted his health and well-being, and the scar and residuals remained with him. In the Veteran’s May 2016 VA Form 9, Appeal to the Board, he stated that due to prolonged marching, standing, running, and intense physical activities during service he developed swelling and pain of his right testis. He had surgery for this during boot camp. VA outpatient treatment (VAOPT) records from 2011 to 2017 note that the Veteran had a history of a right inguinal hernia repair in 1974. While the Veteran has reported postservice treatment sources, he has not identified any source as having specifically treated him for his claimed residuals of right inguinal hernia surgery, to include right leg weakness and effect upon sexual activities. He should be requested to do so. Here, in light of the absence of all of the Veteran’s STRs, he should be afforded an examination for the purpose of determining whether he has any residuals of any inservice injury or right inguinal surgery. See McLendon v. Nicholson, 20 Vet. App. 79, 82 (2006). In view of the foregoing, further development of the record is in order. The matter is REMANDED for the following action: 1. Contact the Veteran request that he provide as much identifying information as possible as to all postservice treatment sources that have specifically treated or evaluated him for any claimed residuals of right inguinal hernia surgery, to include right leg weakness and effect upon sexual activities, and the inclusive dates of all such treatment, as well as the current custodian of such records. If the Veteran responds with sufficiently specific information as to these queries, take the appropriate steps to obtain all such records. 2. Afford the Veteran a VA examination to determine whether he now has chronic residuals of inservice right inguinal hernia surgery, to include right leg weakness and effect upon sexual activities which are as likely as not of service origin due to an inservice injury or inguinal surgery, or both. The medical personnel rendering the opinion is asked to note the different standards of proof. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The examiner must carefully review the evidence of record, the Veteran's statements, and the clinical evidence, and conduct a thorough examination. The Veteran's statements may serve to support any medical determination to the extent the statements may be reasonably made by a layperson. For example, the Veteran, as a layperson may address what her personally observed or experienced, including current or past symptoms, and what a physician previously told him. The examiner must not accept lay statements beyond the ambit of lay knowledge or comprehension, such as a statement by the Veteran that he currently suffers from a medical illness which has not been diagnosed by appropriate medical personnel. The examiner may accept that a physician told the Veteran certain things, for purposes of establishing etiology or a diagnosis, but not accept the Veteran's personal knowledge of such matters. The examiner should also address whether any statements or evidence are contradicted or reasonably questioned based on other evidence of record. In providing the opinions requested, the examiner must provide an explanation (rationale) for any and all conclusions reached. The examiner must address the following: Identify any and all residuals of any inservice right inguinal hernia surgery, to include right leg weakness and effect upon sexual activities, including any postoperative scarring. Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified residuals of inservice right inguinal hernia surgery, to include right leg weakness and effect upon sexual activities or scarring had its’ onset during active service. A complete rationale should be provided for each opinion or conclusion made or explain why such an opinion or conclusion cannot be rendered. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs