Citation Nr: 20009601 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 18-33 574 DATE: February 5, 2020 ORDER Service connection for residuals associated with inguinal hernia repair is granted. FINDING OF FACT Residuals of an inguinal hernia repair are current demonstrated, and the evidence is at least in equipoise as to whether the Veteran sustained an inguinal hernia in service. CONCLUSION OF LAW The criteria to establish service connection for residuals of inguinal hernia repair are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1952 to August 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded by the Board in October 2019. Service Connection Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2018) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Initially, the Board notes that Veteran’s service treatment records are unavailable as they were likely destroyed in the fire that occurred in the National Personnel Records Center (NPRC) in St. Louis, Missouri, in 1973. Since the Veteran’s service records have been destroyed, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit of the rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran maintains that he sustained an inguinal hernia in service and continues to have residual symptoms associated with the disability. In an April 2017 statement (notice of disagreement), the Veteran indicated that he suffered a hernia while in the Army and was diagnosed with such at his service exit examination. The Veteran reported that he chose to have hernia repair surgery at McLendon Hospital in Atlanta, Georgia in 1955. The Veteran indicated that the hospital was closed in the 1960s. In a Request for Information Need to Reconstruct Medical Data, the Veteran similarly reported that he was diagnosed with a hernia in 1954 and had surgery in 1955. See also June 2018 VA Form 9 (Veteran reported similar history). An October 2011 VA treatment record indicated that the Veteran reported having hernia repairs in 1953 and 1988. During a December 2019 VA examination, the Veteran again reported that his hernia occurred during service and was surgically repaired in 1955, approximately one year following service separation in August 1954. The examiner then opined that the Veteran’s hernia was not related to service because there were no medical records showing a diagnosis or treatment for a hernia condition in service. The Board finds that this opinion lacks probative value as the Veteran’s service treatment records have been destroyed in a fire; thus, a lack of documentary evidence is to be expected. The Board finds that there is no dispute that the Veteran has undergone hernia repair surgery; as such, he has a current disability. Moreover, the Veteran has consistently reported that he was diagnosed with a hernia in service and sought treatment immediately following service separation, resulting in surgery in approximately 1955. He is also competent to report observable symptoms of a hernia. He is also competent to report that he was diagnosed with a hernia at his service exit examination. In other words, the Veteran is competent to testify as to what happened to him, and the Board finds no reason to doubt his credibility. Notably, there is no medical evidence disputing the Veteran’s assertions. For these reasons, the Board finds that, at the very least, the evidence of record is in relative equipoise as to the onset of the Veteran’s inguinal hernia resulting in surgery soon after service separation. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran sustained an inguinal hernia in service. Accordingly, service connection for inguinal hernia disability, to include any associated residuals, is warranted. 38 C.F.R. § 3.303 (d). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.