Citation Nr: 20021282 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 20-01 961 DATE: March 25, 2020 ORDER New and material evidence having been received, the claim for service connection for a right inguinal hernia is reopened. Entitlement to service connection for a right inguinal hernia is granted. (The issue of entitlement to a compensable rating for bilateral hearing loss will be addressed in a separate decision, as the Veteran is awaiting the scheduling of a hearing before the Board on this claim.) FINDINGS OF FACT 1. In a June 2013 rating decision, the RO found that new and material evidence had not been submitted to reopen the Veteran’s claim for service connection for a right inguinal hernia. The Veteran did not appeal. 2. The evidence added to the record since the June 2013 RO decision was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a right inguinal hernia. 3. The Veteran’s right inguinal hernia is related to his active service. CONCLUSIONS OF LAW 1. The June 2013 rating decision that denied the petition to reopen a claim for service connection for a right inguinal hernia is final. 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right inguinal hernia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a right inguinal hernia have been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from August 1967 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for “recurrent right inguinal hernia and left inguinal hernia” on the basis that new and material evidence had not been submitted. In November 2018, the Veteran submitted a timely notice of disagreement. Thereafter, in April 2019 the RO awarded service connection for a scar, residuals of a left inguinal hernia repair, and assigned an initial, noncompensable disability rating under Diagnostic Code 7805. As such, the Veteran is service connected for residuals of a left inguinal hernia. However, when the RO issued a statement of the case in October 2019, it continued to characterize the issue on appeal as “recurrent right inguinal hernia and left inguinal hernia.” The Veteran then perfected an appeal. As the claim for service connection for residuals of a left inguinal hernia has been granted, there is currently no justiciable case or controversy for active consideration by the Board on that issue. However, if the Veteran disagrees with how the residuals of his left inguinal hernia were rated, i.e., if he believes that his left inguinal hernia residuals are more severe than the rating assigned or that a different diagnostic code is more appropriate, he has until July 26, 2020 to submit a notice of disagreement with the April 2019 rating decision. See Letter from the RO to the Veteran, dated July 26, 2019. 1. New and material evidence having been received, the previously denied claim for service connection for a right inguinal hernia is reopened. In a June 2013 rating decision, the RO found that new and material evidence had not been submitted to reopen the Veteran’s claim for service connection for a right inguinal hernia. The Veteran was notified of the June 2013 rating decision and of his appellate rights by letter dated June 20, 2013. He did not submit a notice of disagreement or initiate an appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for perfecting an appeal). Moreover, new and material evidence was not of record within one year of this decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); see also 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). Accordingly, the June 2013 rating decision is final. See 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). The new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. Medical evidence has been obtained showing that the Veteran had a recurrence of a right inguinal hernia in 2014. At the time of the June 2013 rating decision, there was no medical evidence of a current right inguinal hernia. Thus, the new evidence is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate his claim, and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.356(a). Therefore, the claim is reopened. 2. Entitlement to service connection for a right inguinal hernia is granted. Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. The Veteran currently has a recurrent right inguinal hernia, shown on VA examination in April 2019. Thus, he has a right inguinal hernia disability and the first element of service connection has been met. The Veteran’s service treatment record show that in September 1967, he was seen with swelling and tenderness in the right inguinal area. The examiner noted a round mass in the right groin that did not reduce easily. The provisional diagnosis was a non-reducible inguinal hernia. The Veteran was referred to the emergency room, where an inguinal hernia was not detected on examination. However, the Veteran was told to return at the first indication of recurrent symptomatology. Post service, a review of the medical evidence shows that the Veteran had right inguinal hernia surgery in 1974 (see VA examination report dated in March 1977) and then again in 2002, with a recurrence of the hernia in 2014. The VA examiner in April 2019 stated: “The veteran has documentation of having a surgery for repair of a left hernia while on AD. There is also mention of right sided hernia's after AD, and recurrence of these. Only one surgery during AD on left for hernia repair. Medical nexus is established.” Thus, it appears that the examiner concluded that the recurrence of the left inguinal hernia after service was related to the in-service left inguinal hernia. While she did not provide a similar opinion for the recurrence of the right inguinal hernia after service, she did not concede the in-service finding of a right inguinal hernia in September 1967. Applying the logic for the opinion concerning the left inguinal hernia, it follows that the recurrent right inguinal hernia also had its onset during service. Thus, service connection for a recurrent right inguinal hernia is granted. See 38 C.F.R. § 3.303. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.