Citation Nr: 20002889 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 15-41 541 DATE: January 13, 2020 ORDER Entitlement to service connection for a left inguinal hernia is granted. REMANDED Entitlement to service connection for retained metallic fragments near the left hip (claimed as a bullet wound) is remanded. Entitlement to service connection for a back condition, to include as secondary to retained metallic fragments is remanded. Entitlement to service connection for a kidney condition, to include as secondary to retained metallic fragments is remanded. Entitlement to an initial compensable rating for hernia residuals, a scar is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, he has a current disability related to a left inguinal hernia that is related to his active service. CONCLUSION OF LAW The criteria for service connection for a left inguinal hernia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2013 and April 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. During the hearing, the undersigned agreed to hold the record open for a period of 60 days to allow for the submission of additional evidence. That time period has now elapsed, and no additional evidence has been received. Entitlement to service connection for a left inguinal hernia. The Veteran seeks service connection for a left inguinal hernia. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Initially, the Board notes that there is conflicting evidence as to whether the Veteran has a current disability related to a hernia. The Veteran underwent a VA examination in December 2012 at which time the examiner did not find a current hernia. However, a June 2010 private treatment record reports a “fat-containing left inguinal hernia.” It is not clear from the record whether the hernia reported in the June 2010 private treatment record resolved prior to the Veteran filing his claim or during the pendency of the appeal prior to the December 2012 examination. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Moreover, during the February 2019 Board hearing, the Veteran reported that he experiences pain from his left hernia which causes difficulty with lifting. Even without a current diagnosis, these reports of pain constitute a current disability as they result in functional impairment (i.e. difficulty with lifting). Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). Thus, in light of the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board will concede the first element of service connection, a current disability. The Veteran’s service treatment records (STRs) show that he experienced a left inguinal hernia in June 1967 at which time he underwent surgery. The Veteran experienced a recurrent left inguinal hernia in July 1968 and underwent a second surgery. On his September 1968 Report of Medical History, the Veteran reported “yes” to “rupture/hernia.” In light of the Veteran’s recurrent left inguinal hernia in service, and his current disability related to a left inguinal hernia, the Board resolves all reasonable doubt in favor of the Veteran and finds service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for retained metallic fragments near the left hip. The Veteran seeks service connection for retained metallic fragments near his left hip. In April 2015, the Veteran submitted x-rays from September 2006 that show an object near the Veteran’s left hip. In a statement received by VA in September 2013, the Veteran contends that the doctor told him that the object was an old bullet and was deteriorating. However, the report completed by the doctor following the x-rays does not note any bullet or retained metallic fragments. The Veteran contends that he was hit with a bullet while doing physical training and running on the track. See Statement received January 2013; February 2019 hearing transcript. The Veteran contends that he felt a sharp pain on his left side and collapsed. He was taken to the hospital and diagnosed with a recurrent left inguinal hernia. See July 1968 STR. The Veteran contends that the track was very close to the shooting range and submitted a photograph showing the location of the range to the track. The Veteran also has reported that there is a mark above his hernia scar that shows where the bullet entered. In light of the foregoing, the Board finds that the Veteran should be afforded a VA examination to determine whether he has any retained metallic fragments, and if so, whether they are related to his reports of being hit with a bullet in service. 2. Entitlement to service connection for a back condition and a kidney condition, to include as secondary to retained metallic fragments. The Veteran seeks service connection for a back condition as well as a kidney condition. The Board finds that additional development is necessary prior to adjudication. First, there may be outstanding, relevant private treatment records. During the February 2019 Board hearing, the Veteran testified that he has received treatment for his back and kidneys from Riverview Medical Center. He also testified that he has received treatment from a chiropractor for his back condition. In September 2019, the Veteran submitted a limited number of laboratory and pathology reports from Riverview Medical Center relating to his kidneys. However, no records from Riverview Medical Center pertaining to his back or from a chiropractor are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. Additionally, in a November 2011 correspondence, the Veteran reported that he has been on disability, presumably from the Social Security Administration, since 2007 due to his back condition. See also October 2010 private treatment record (noting the Veteran is disabled due to degenerative joint disease and no longer working). Records from SSA have not yet been obtained. On remand, steps should be taken to obtain all records currently in the possession of SSA concerning the Veteran’s claim for benefits. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2012). Moreover, the Veteran’s private treatment records shows a current diagnosis related to the back. See February 2011 private treatment record. His private treatment records also show that the Veteran has had recurrent kidney stones. Additionally, the Veteran reported during the February 2019 hearing that he has been treated for kidney cancer at Riverview Medical Center. See also November 2018 pathology report for a left kidney mass. The Veteran contends that his back and kidney condition are related to heavy lifting in service as a cook. See February 2019 hearing transcript. In the alternative, he contends that they are due to retained metallic fragments from a bullet wound, which he is seeking service connection for. The Veteran has not yet been afforded a VA examination for either his back or kidneys. In light of the foregoing, the Board finds that a VA examination and etiological opinion should be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to an initial compensable rating for a scar, hernia residuals. The Veteran seeks a compensable rating for his scar associated with his in-service hernia surgery. The Veteran underwent VA examinations for his scar in December 2012 and March 2016. The December 2012 examiner did not note any symptoms related to the scar, including skin breakdown or tenderness on palpitation. The March 2016 examiner noted that the Veteran denied any pain with respect to the scar and reported the scar as not painful. Again, no symptoms related to the scar were noted. However, during the February 2019 hearing, the Veteran reported that he experienced pain, itching, and exfoliation related to the scar. As there is evidence that the Veteran’s scar has increased in severity since his most recent VA examination, the Board finds that a new examination should be provided to determine the current severity of his hernia scar. Moreover, there may be outstanding, relevant private treatment records. During the February 2019 hearing, the Veteran reported that he has been treated for his hernia scar at Riverview Medical Center. However, no records from Riverview Medical Center or Dr. J.L. pertaining to treatment for a scar are of record. The Veteran submitted only a limited number of laboratory and pathology reports from Riverview Medical Center. Additionally, while the Veteran submitted records from Dr. J.L. from March 2018 to February 2019, none of the records pertain to treatment for his scar. Thus, it is unclear whether all relevant records are associated with the claims file. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Riverview Medical Center, any chiropractors he has sought treatment from for his back condition, and Dr. J.L. Make two requests for the authorized records from Riverview Medical Center, Dr. J.L., and any other identified providers, unless it is clear after the first request that a second request would be futile. 2. Take appropriate steps to obtain any outstanding SSA records. If any requested records are unavailable, the claims folder should be clearly documented to that effect and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his back condition, claimed kidney condition, and claimed retained metallic fragments. The examiner must review the claims file and a copy of this Remand. The examiner is asked to provide the following: a) State whether the Veteran has a kidney condition at any point during the appeal period and/or retained metallic fragments. b) Opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s back condition had its onset in, or is otherwise related to, active service, to include heavy lifting as a cook in service. c) Opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s kidney condition had its onset in, or is otherwise related to, active service, to include heavy lifting as a cook in service and reports of back pain since service. d) Opine whether it is at least as likely as not (a 50 percent or greater probability) that any retained metallic fragments are related to the Veteran’s active service, to include his reports of being hit with a bullet in service. c) Opine whether it is at least as likely as not that the Veteran’s back and/or kidney condition is caused or aggravated by his retained metallic fragments, to include any lead that could have been released by the fragments. If aggravation is found, to the extent possible, the examiner should establish a baseline level of severity prior to aggravation by the service-connected disability. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.