Citation Nr: 18149126 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 18-01 165 DATE: November 8, 2018 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for post-operative residuals of umbilical hernia is denied. Entitlement to service connection for inguinal hernia is denied. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.29 and/or § 4.30 due to treatment for a hernia disability denied. FINDINGS OF FACT 1. In an unappealed December 2007 rating decision, the RO severed service connection for post-operative residuals of umbilical hernia. 2. Evidence received since the final December 2007 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for post-operative residuals of umbilical hernia. 3. A hernia was not shown in service or for many years thereafter, and there is no probative evidence linking such condition with service. 4. The law does not provide for the assignment of temporary total rating(s) for nonservice-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for post-operative residuals of umbilical hernia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). 2. The criteria for entitlement to service connection for a hernia condition, to include inguinal hernia, have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for a temporary total evaluation pursuant to 38 C.F.R. § 4.29 and/or § 4.30 due to hernia disability are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 4.29, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to January 1978. New and Material Evidence Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “Material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for “post-operative residuals of umbilical hernia” Historically, in a November 2006 rating decision, the RO granted service connection for umbilical hernia, residuals, status post-repair. In a July 2007 rating decision, however, the RO determined that the grant of service connection for umbilical hernia was clear and unmistakable error (CUE), and therefore proposed to sever service connection for post-operative residuals of umbilical hernia. In an unappealed December 2007 rating decision, the RO severed service connection for post-operative residuals of umbilical hernia, based on a finding that the finding that RO’s July 2007 grant of in-service for umbilical hernia, status post repair, was CUE. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the December 2007 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. At the time of the December 2007 rating decision, the evidence of record consisted of service treatment records, private treatment records, VA treatment records and VA examination and opinion report. The service treatment records documented complaints of right side groin pain in November 1977. Examination of the scrotum, testes and penis, revealed no abnormalities. The clinical assessment was strain. He was provided scrotal support. The Veteran continued to complain of pain in the groin area and he was referred for a surgical evaluation. In January 1978, following an examination of the Veteran, it was determined that no hernia or inguinal disease was present, but rather that the Veteran had sprained the rectum doing sit ups. VA and private treatment records after 2002 reflect treatment for hernias, including hernia repairs. In May 2007, following a review of he claims file and an examination of the Veteran, a VA examiner opined that the Veteran’s umbilical hernia, status post-repair, was not caused by or the result of his military service, nor was it related to the in-service complaints and treatment for right sided groin pain, as examination failed to show hernia. The evidence received since the prior final denial includes treatment records that document ongoing treatment for hernias. Such evidence is new as it was not previously of record. Moreover, such evidence must be presumed credible for the purposes of new and material evidence analysis. However, none of the evidence suggests that any hernia disability, initially noted more than one year after discharge from service, is related to service. The Board has also considered the Veteran’s own lay statements associating his post-service hernia problems with service, to include his complaints of right-sided groin pain in 1977 and 1978 while on active duty. However, the lay statements are simply a reiteration of his previously considered general assertions of service connection. Even assuming their credibility for new and material evidence analysis, the statements are cumulative and cannot be considered new and material evidence. Simply stated, the Veteran is repeating his prior claim. In any event, it is important for the Veteran to understand that in the event the Board found new and material evidence, that new evidence (as cited above), would provide a basis to deny this claim once again. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim for service connection for post-operative residuals of umbilical hernia, the benefit-of-the-doubt doctrine is not applicable as to that claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. 2. Entitlement to service connection for “inguinal hernia” There is a great deal of resemblance in this issue and the one cited above, the “post-operative residuals of umbilical hernia”, to the point that it is unclear if this is, in fact, a different problem. In any event, to give the Veteran every consideration, the Board will address these issues separately. The Veteran contends that his hernia disability, to include inguinal hernia, was incurred in service. The service treatment records documented complaints of right side groin pain in November 1977. Examination of the scrotum, testes and penis, revealed no abnormalities. The clinical assessment was strain. He was provided scrotal support. The Veteran continued to complain of pain in the groin area and he was referred for a surgical evaluation. In January 1978, following an examination of the Veteran, it was determined that no hernia or inguinal disease was present, but rather that the Veteran had sprained the rectum doing sit ups. The service treatment records are silent for complaints, treatment or diagnosis of a hernia condition. After service, VA and private treatment records after 2002 reflect treatment for hernias generally associated with lifting, including inguinal hernia. As noted the service treatment records failed to document any complaints, history or findings consistent with a hernia, and there is no evidence of a hernia until more than 20 years after discharge from service. The fact that there was no record of treatment for over 20 years is significant. A lack of contemporaneous medical treatment is a relevant factor in the Board’s analysis. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the Veteran’s entire medical history, including a lengthy period of absence of complaints). Although the lack of contemporaneous medical records showing the event is not dispositive of the issue. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board is not solely relying on the lack of documented treatment proximate to service in denying the claim, the lack of in-service findings have also been considered. On the question of medical causation, the weight of the evidence is against the claim. A VA examiner in July 2015, opined that the Veteran’s claimed right sided hernia, status post-surgery was less likely than not (less than 50 percent) caused by, or as a result of the right groin pain and possible right inguinal hernia shown during active duty. The examiner cited to the evidence in the claims file and explained that the service treatment records and treatment records after service discharge, failed to document a persistent hernia condition, until many years after active duty. The examiner further noted inguinal hernias may arise from increase pressure within the abdomen, a pre-existing spot in the abdominal wall, a straining during bowel movements or urination, male sex, heavy lifting, abdominal ascites, pregnancy, obesity, or chronic coughing or sneezing for example, activities commonly encountered in everyday life. At other times, inguinal hernias had no apparent cause. The examiner concluded that it was more likely that the Veteran had developed the inguinal hernia due to one or more of the above activities, as opposed to an in-service event. The Board finds the opinion of the VA examiner in July 2015 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred a hernia disorder as a result of service. The examiners’ findings were based on a review of the evidence, including the service treatment records, which did not substantiate a finding that the Veteran sustained a chronic hernia disability in service. The examiner considered the complete record and the Veteran’s contentions, and provided adequate explanation as to why the evidence does not support a finding that his inguinal hernia was due to service. Additionally, the VA examiner provided reasoning that is supported by the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board finds the Veteran competent and credible to provide lay statements with regard to his symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, such statements do not establish continuous hernia symptoms dating back to service in this case. The Veteran lacks the medical expertise to opine as to the etiology of his hernia disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, competent evidence linking the claimed disability to service is needed to substantiate the claim. Here, there is no competent medical opinion of record linking any current hernia to service. In fact, the only probative evidence of record, the July 2015 VA examiner’s opinion, weighs against the claim. In summary, there is no competent evidence of a hernia disability during service, or until more than two decades after discharge from service. Additionally, there is no competent and probative medical evidence that supports the claims for service connection. The best evidence in this case provides evidence against this claim. Accordingly, the preponderance of the evidence is against the claim, and service connection for a hernia is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55-56. 3. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.29 and/or § 4.30 due to hernia disability A total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A temporary total rating will also be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that treatment of one or more service-connected disabilities resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. In this case, the record reflects the Veteran is seeking a temporary total evaluation pursuant to 38 C.F.R. §§ 4.29 and/or 4.30 due to his hernia disability. However, as detailed above, the Board has determined that service connection is not warranted for this disability. The law does not provide for the assignment of a temporary total evaluation for nonservice-connected disability. Consequently, this claim must be denied as a matter of law. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana