Citation Nr: 1817164 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-22 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a right inguinal hernia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1982 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which the RO denied the Veteran's claim of entitlement to service connection for a right inguinal hernia. The Veteran filed a timely Notice of Disagreement (NOD) in January 2011. The RO then furnished the Veteran a Statement of the Case (SOC) in July 2011. The Veteran filed a Substantive Appeal, VA Form 9, in August 2011. In June 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. The Board remanded the claim in May 2014. It was returned for adjudication. The Board denied the claim in August 2016. Then, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in March 2017, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. The Board remanded the claim in August 2017 in order for the RO to undertake additional development. The case has now returned to the Board for adjudication. The issue on appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay of this appeal, a remand is required before the remaining issue on appeal can be properly adjudicated. Upon review, the August 2017 remand instructions requested that the AOJ obtain an opinion as to whether the Veteran's statement to the July 2014 examiner that he experienced a bulge in his right groin following a 1986 incident is consistent with the pathology of having had a hernia in service. In this regard, the September 2017 VA examiner reviewed the Veteran's records and determined that there was no in-service "documentation" of groin pain, hernia, or ball in groin and therefore the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, as discussed in detail below, the record evidence is sufficient to establish the Veteran's in-service injury or event. The evidence of record reveals that the Veteran's military occupational specialty (MOS) was that of a field artillery cannon crewman from 1982 to 1986. His responsibilities in that MOS included driving and being the trigger man. The trigger man must lift a 100 pound bullet and load it into the tube of a Howitzer. The Veteran stated that in 1986, he had an incident of groin pain following the lifting of an ammunition box. He stated this incident resulted in a bulge in his right groin area that felt like he had "an extra ball in his sack." While there is no specific documentation of the Veteran's account of the incident, given that the military occupational specialty is verified, the evidence is sufficient to find that the Veteran suffered the injury and symptoms as described, even without explicit documentation of such treatment, because such a lifting injury would be consistent with circumstances of the Veteran's service as a field artillery cannon crewman. As such, resolving all reasonable doubt in the Veteran's favor, his lay account of the in-service injury, which in accordance with 38 U.S.C. § 1154(a), may be accepted as sufficient evidence of what happened in service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In light of the foregoing, and given that the Veteran's service treatment records are unavailable, the claim must be remanded for an addendum opinion that discusses and considers whether the Veteran's account of his in-service injury in 1986, as described, is consistent with the onset of pathology of an inguinal hernia. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for his right inguinal hernia and to provide authorizations for VA to obtain records of any such private treatment records. The AOJ should obtain for the record complete clinical records of all pertinent evaluations and/or treatment (records of which are not already associated with the record) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. After instruction (1) is completed, the AOJ should return the file to the VA examiner who provided the September 2017 examination and opinions. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. Another examination of the Veteran should only be performed if deemed necessary by the individual providing the response to the inquiries below. All indicated tests and studies should be accomplished and the findings reported in detail. The entire record must be made available to and reviewed by the examiner. The examiner should specifically state that such a review was conducted. The examiner should respond to the following: Please identify the likely cause of the Veteran's right inguinal hernia. Specifically, is it as least as likely as not (50 percent probability or more) that such a disorder was caused by, or is the result of, the Veteran's having suffered groin pain and a bulge in his right groin area (which felt like he had "an extra ball in his sack") following the lifting of an ammunition box in service? In this special context, while the Veteran's account of his lifting injury is not documented in the service treatment records or file, the examiner is asked whether the Veteran's descriptions of the type of lifting injury and symptoms he experienced following that injury in service are consistent with the onset of any pathology of a right inguinal hernia. The examiner should explain why that is, or is not so. If the Veteran's right inguinal hernia shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably make clear the medical guidance in the study of this case. 3. Then, the AOJ should review the record, conduct any additional develop deemed necessary, and re-adjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned 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). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).