Citation Nr: 1807408	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-14 270	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for an umbilical hernia, to include chronic residuals of herniorrhaphy.

2.  Entitlement to service connection for a chronic disability manifested by sleep impairment.

3.  Entitlement to service connection for a cyst on the back of the head.

4.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 

5.  Entitlement to service connection for pseudofolliculitis barbae (PFB).

6.  Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. Olson, Counsel


INTRODUCTION

The Veteran had active military service from March 1974 to November 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In April 2016, the Veteran testified at a videoconference hearing.  A transcript of that hearing is of record.  

The claims file is in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS).

The issues of entitlement to service connection for a chronic disability manifested by sleep impairment, a cyst on the back of the head, an acquired psychiatric disability to include PTSD, PFB, and tinnitus are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT

The Veteran underwent a herniorrhaphy in service to repair a preexisting umbilical hernia which did not thereafter increase in severity during service.


CONCLUSION OF LAW

The Veteran's preexisting umbilical hernia was not aggravated by active duty service.  38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. § 3.306 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matter

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The requirements of 38 U.S.C. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in February 2011 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  Moreover, during the April 2016 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order. 

Service Connection

The Veteran seeks service connection for an umbilical hernia.

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  

In general, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such 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.A. § 1111; 38 C.F.R. § 3.306(a) (2017).  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service.  This includes medical facts and principles which may be considered to determine whether increase is due to the natural progress of the condition.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. § 3.306(b) (2017).  The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.  38 C.F.R. § 3.306 (b)(1) (2017).

A review of the record indicates that the Report of Medical Examination for induction in January 1974 noted a small umbilical hernia.  In March 1974, the Veteran underwent an umbilical herniorrhaphy to repair the umbilical hernia.  

As such, the Board finds that the surgery that was performed in service was clearly done in order to ameliorate the underlying condition, that is, the small umbilical hernia.  This was accomplished as evidenced by follow up appointments with the general surgery clinic in April 1974 and May 1974 which demonstrated that the wound was unremarkable, there was no evidence of recurrence, that the Veteran had no complaints, and that the wound had healed.  Therefore, the surgical intervention had the effect of ameliorating the condition in question and will not be service-connected, absent a showing that the disease or injury was otherwise aggravated by service.  See 38 C.F.R. § 3.306 (b)(1) (2017).  There is, however, no evidence of record that the umbilical hernia was otherwise aggravated by service.  There was no additional injury to the stomach during service and no evidence that this condition increased in severity during service. 

As a consequence, service connection cannot be established for an umbilical hernia or chronic residuals of the herniorrhaphy that was performed to ameliorate the small umbilical hernia.  

The Board has considered the Veteran's own opinion that he has residual disability from his umbilical hernia that is related to his active service.  In this case, the Board does not find him competent to provide an opinion regarding the etiology of his current complaints as this question is of the type that the courts have found to be beyond the competence of lay witnesses.  Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran herein cannot be accepted as competent medical evidence.  

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) (2012) is not for application.  
 

ORDER

Entitlement to service connection for an umbilical hernia, to include chronic residuals of herniorrhaphy, is denied.


REMAND

The Veteran also seeks service connection for a cyst on the back of his head, insomnia, PFB, a psychiatric disorder, and tinnitus.

The Veteran has not been afforded a VA examination, with an opinion as to the etiology of these claimed disabilities. 
 
In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d) (2012) and 38 C.F.R. § 3.159(c)(4) (2017).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  
  
A review of the record also indicates that in May 1975, the Veteran was seen with a tender lump on the back of his head; the impression was a sebaceous cyst.  In June 1975, the Veteran had indications of having PFB and it was recommended that he be placed on a shaving program for thirty days.  In August 1975, the Veteran presented with complaint that he could had not been able to sleep at night for seven to ten days.  On the clinical examination in November 1975 for separation from service, the Veteran's head and scalp, his face and skin, and his psychiatric health were evaluated as normal.  

The Veteran testified in April 2016 that he has a cyst on the back of his head that began in service.  He also testified that he experiences bumps on his face if he tries to shave everyday which began in service.  He further testified that he has tinnitus which began while he was in basic training and had to crawl through tunnels under wires while charges detonated on each side of him.  Finally, the Veteran testified that he has had problems sleeping, anxiety, and anger since service.

The Board finds that such evidence triggers the duty to provide a VA medical examination for an etiology opinion.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his a cyst on the back of his head, insomnia, PFB, PTSD, and tinnitus that is not evidenced by the current record.  If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file.  These records should then be obtained and associated with the claims folder.  The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue.  Any attempts to obtain records should be documented in the claims folder.

2.  The Veteran should be afforded a VA psychiatric examination.  The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  The examiner should identify all current chronic psychiatric disorders and provide an opinion as to whether it is at least as likely as not that any such disorder is related in any way to the Veteran's active duty service to include any symptoms, such as insomnia, documented during such service.

3.  The Veteran should be afforded a VA dermatology examination.  The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  The examiner should identify all current chronic dermatology disorders of the scalp and face and provide an opinion as to whether it is at least as likely as not that any such disorder is related in any way to the Veteran's active duty service to include any symptoms, such as sebaceous cyst and PBF, documented during such service.

4.  It would be helpful if the examiner would use the following language, as may be appropriate:  "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means 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 that conclusion as it is to find against it.  The examiner should provide a complete rationale for any opinion provided.

5.  The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

6.  After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this REMAND.   If any report is deficient in any manner, corrective procedures should be implemented.  

7.  The case should be reviewed on the basis of the additional evidence.  If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs