Citation Nr: 18149858 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-39 200 DATE: November 13, 2018 ORDER Service connection for residuals of a herniorrhaphy (right inguinal hernia repair surgery) is granted. REMANDED Entitlement to service connection for a bilateral knee disability, to include osteoarthritis, degenerative joint disease (DJD), patellofemoral dysfunction, and meniscus tear, is remanded. FINDINGS OF FACT 1. The Veteran underwent a March 2001 right inguinal hernia repair surgery prior to his second period of active service from September 2004 to November 2005. 2. Resolving reasonable doubt in his favor, the Veteran’s pre-existing hernia repair surgery was aggravated beyond its natural progression during active service. CONCLUSION OF LAW The Veteran’s right inguinal hernia repair surgery clearly and unmistakably preexisted service and was permanently aggravated by service; the presumption of soundness at entry is rebutted. 38 U.S.C. § 1110, 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army Reserve (USAR), to include periods of active duty from September 1980 to September 1983 and September 2004 to November 2005, with service in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA). Evidence in the record suggests that the Veteran has been diagnosed with multiple bilateral knee conditions; therefore, the Board will broadly construe the issues as a claim for service connection for a bilateral knee disability however diagnosed. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In July 2016, the Veteran requested a Board hearing at a local office. In January 2017, the RO received correspondence from the Veteran, through his representative, seeking to withdraw the Board hearing request. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e). After the Veteran filed his substantive appeal (VA Form 9), service connection for obstructive sleep apnea was granted in a May 2018 rating decision. Because that decision represents a full grant of the benefit sought, the issue is not before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service connection for residuals of a right inguinal hernia repair surgery is granted. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). However, when a question is raised as to whether a particular disability claimed by the Veteran pre-existed service, VA law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a pre-existing disability is noted at entry, then the presumption of soundness is rebutted, and aggravation of that disability must be demonstrated for service connection to be granted. A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends his residuals of inguinal hernia repair surgery are related to his active service as a logistics specialist. Specifically, he asserts that his hernia was aggravated by wearing a combat vest and carrying a backpack, ammunition, and combat supplies while deployed to Iraq in 2004 to 2005. See August 2016 Statement in Support of Claim. In this regard, USAR treatment records reflect the Veteran underwent a hernia repair surgery in March 2001, more than 3 years prior to the period of active duty in which he claims the aggravation occurred. See November 2002 USAR treatment records;October 2017 VA treatment records. Given this notation, the presumption of soundness is rebutted, and service connection may only be granted if there is a showing of an increase in this disability during his service. Upon review of the evidence, the Board finds that there is evidence of such an increase. Notably, while VA treatment records reflect there was no definite recurrence of right inguinal hernia, the Veteran reported symptoms (to include abdomen pain and bulging) indicating aggravation of the 2001 hernia repair surgery only 1 month after separation from his second period of active service (December 2005, January 2006, August 2006). Indeed, the record reflects the Veteran reported he has been suffering a recurrent right inguinal stabbing pain and pulling discomfort that is precipitated by lifting or carrying heavy objects, prolonged standing, or upon stretching the body since returning from deployment to Iraq in 2005; and reported only post-service sedentary work as an accountant. See October 2017 VA examination report. The Board notes that the February 2014 and October 2017 VA examinations are inadequate and accords them little to no probative weight. The February 2014 examiner opined that “the condition claimed was at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event or illness,” but also provided a contradictory rationale in which she reasoned “there is no evidence of recurrent right inguinal hernia. So, it is not likely that claimed aggravated inguinal hernia, is caused by, nor related to service.” As such, the examiner’s opinion is inadequate because it is inconsistent. Further, the October 2017 examiner opined that the Veteran’s hernia was less likely than not related to his active service because his physical examinations from July 1980 to April 1992 “did not identify any hernia making the [V]eteran’s suspicion that left side stomach pain in 1983 was less likely related to his inguinal hernia” and “there is no evidence of recurrence of hernia at present examination.” However, the examiner failed to consider the Veteran’s second period of active service and post service findings. In this regard, the Board notes that VA treatment records show the Veteran underwent inguinal hernia repair surgery in 2001 and symptoms suggesting aggravation in 2006 (November 2002, December 2005, January 2006, August 2006). Moreover, aggravation of a pre-existing condition was not addressed by the opinion. Therefore, the opinion is inadequate to adjudicate the question of aggravation. In view of the totality of the evidence, including the Veteran’s documented 2001 hernia repair surgery, complaints of symptoms indicating aggravation since deployment to Iraq in 2004, the diminished probative value of the February 2014 and October 2017 VA examination reports, and the competent and credible lay assertions of record, the Board finds that aggravation of the Veteran’s March 2001 hernia repair surgery cannot be reasonably disassociated from his military service. The Board finds that after resolving the benefit of the doubt in favor of the Veteran, service connection for residuals of herniorrhaphy (right inguinal hernia repair surgery) is warranted. 38 C.F.R. §§ 3.102, 3.303(a); see Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for a bilateral knee disability is remanded. The Board finds that further development is necessary to comply with VA’s duty to assist the Veteran to obtain evidence needed to substantiate his claim. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran contends that his bilateral knee disability was aggravated by his active service as a logistics specialist while deployed to Iraq. Specifically, he asserts that his bilateral knee disability “got worse due to the high physical demand environment while mobilized in Iraq,” including “the weight of ceramic plates, ammunition, combat supplies and equipment, and repetitive stress on knee joint [s] such as that sustained during running…” See August 2016 Statement in Support of Claim; October 2018 Informal Hearing Presentation (IHP). In this regard, treatment records reflect a diagnosis of left knee chondromalacia with joint effusion in January 2001 and complaints of bilateral knee pain since at least April 2003, 17 months prior to the period of active duty in which he claims the aggravation occurred. Given this notation, the presumption of soundness is rebutted, and service connection may only be granted if there is a showing of an increase in this disability during his service. See January 2001 private treatment record; U.S. Army Reserve (USAR) treatment records dated November 2002 and April 2007; May 2014 VA examination report. Upon review of the evidence, the Board finds that the April 2017 private and May 2014 VA opinions are inadequate. The April 2017 private examiner opined that “it is more likely than not that the aggravated knees condition was caused by sustained physical stress, weight of protective ceramic plates, ammunition and other combat supplies and equipment carried during the veteran’s military services in Iraq,” but did not provide a rationale. Further, the May 2014 VA examiner opined the Veteran’s bilateral knee disability “which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness,” but subsequently opines “if the lay statement of the Veteran is correct, the left knee condition would be at least likely as not secondary to his military service.” However, the positive opinion is based on a finding of no pre-existing condition. As noted above, the Board has determined the Veteran had a pre-existing knee disability. As such, the opinions are inadequate because they are conclusory and inconsistent, and based on an inaccurate factual premise. Therefore, remand is necessary to obtain an exam that considers all evidence of record, including the private opinion. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities since October 2017. 2. After the above development in (1) is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran’s bilateral knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify all diagnosed knee disabilities present during the appeal period (from July 2013). In doing so, it should be noted that the record contains a diagnoses of bilateral knee osteoarthritis, degenerative joint disease (DJD), patellofemoral dysfunction, and meniscus tear. (b) Does the evidence clearly and unmistakably show that the pre-existing condition was not aggravated by the Veteran’s second period of active service? Please explain why. In doing so, it should be noted that the record shows a diagnosis of left knee chondromalacia with joint effusion in January 2001, complaints of bilateral knee pain since at least April 2003, and the April 2017 private opinion. The examiner should also address the Veteran’s statements that his bilateral knee disability was aggravated by his deployment to Iraq from 2004-2005 and the April 2017 private opinion. Aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond the natural progression, versus a temporary flare-up of symptoms. Clear and unmistakable means obvious and manifest. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel