Citation Nr: 21004170 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-04 717 DATE: January 26, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for residuals of a hernia is granted. REMANDED Entitlement to service connection for residuals of a hernia is remanded. FINDING OF FACT 1. In a final rating decision issued in December 1959, the Agency of Original Jurisdiction (AOJ) denied service connection for a stomach condition. 2. Evidence added to the record since the final December 1959 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for residuals of a hernia. CONCLUSION OF LAW 1. The December 1959 rating decision that denied service connection for a stomach condition is final. 38 U.S.C. § 4005(c) (1958, Supp. 1962); 38 C.F.R. § 3.104 (1956, Supp. 1959). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a hernia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to December 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2014 by a Department of Veterans Affairs (VA) Regional Office. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. While the AOJ adjudicated the claim of entitlement to service connection for residuals of a hernia in the October 2014 rating decision, the Board notes that a final rating decision issued in December 1959 denied service connection for a stomach condition. In this regard, as such claim, as well as the current matter, is based on the same factual premise, i.e., in-service complaints of lumps on the stomach, the issue on appeal has been recharacterized as an application to reopen a previously denied claim. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for residuals of a hernia. By way of background, VA received the Veteran’s original claim for service connection for residuals of a hernia, claimed as a stomach condition, in October 1959. In a December 1959 rating decision, the AOJ considered the Veteran’s service treatment records (STR) and noted that a May 1957 STR reflected complaints of lumps on the stomach and some tenderness was noted on examination; however, GI studies were negative. Additionally, while the Veteran reported a history of a stomach condition in service at the time of discharge, his separation examination failed to reveal any residuals of an in-service condition. Consequently, service connection for a stomach disorder was denied. Later that month, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. 38 C.F.R. § 3.156(b), (c). In this regard, the Board notes that copies of the Veteran’s separation examination were submitted in December 2013, July 2014, and December 2014; however, as such was previously of record at the time of the December 1959 rating decision, such is irrelevant. Therefore, the December 1959 rating decision is final. 38 U.S.C. § 4005(c) (1958, Supp. 1962); 38 C.F.R. § 3.104 (1956, Supp. 1959). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither 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. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the December 1959 rating decision includes VA treatment records, an April 2014 VA examination, and the Veteran’s lay statements, to include his testimony at the December 2020 Board hearing. In this regard, the Veteran’s April 2014 VA examination report reflects post-service diagnoses of inguinal and ventral hernias, which he reported that he underwent surgery for in the 1990’s, and residual surgical scars. Furthermore, at his December 2020 Board hearing, the Veteran provided additional details regarding the incurrence of a hernia during service. Specifically, he testified that, when opening a heavy hangar door, he felt a pop right above his belly button. The Veteran indicated that such occurred at the same time he injured his left great toe, for which he received treatment as documented in an April 1956 STR. He further testified that he experienced pain in service, which continued until his hernia was surgically repaired in the 1990’s, and has continued to experience residuals, to include acid reflux and bowel trouble. As noted previously, the Veteran’s claim for service connection for a stomach condition previously denied based on a lack of residuals of his in-service complaints. Consequently, as the newly received evidence includes post-service diagnoses of a hernia, which was surgically repaired, and ongoing complaints of symptoms, which are presumed credible for the purpose of reopening the claim, the Board finds that the evidence received since the December 1959 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for residuals of a hernia. Accordingly, new and material evidence has been received and such claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for residuals of a hernia. As indicated previously, the Veteran reports that he felt a pop right above his belly button when opening a heavy hangar door in service, which occurred at the same time he injury his left great toe for which he received treatment as documented in an April 1956 STR. Furthermore, May 1957 STR reflected complaints of lumps in the epigastric area, pain after eating meals for past 2 months, and tenderness in the epigastrium. At such time, it was noted that the reported lumps appeared to be fibrous accumulations. The impression was GI issues; however, GI studies revealed no organic lesion in the upper GI tract. The Veteran’s November 1957 separation examination reflects his report of stomach trouble in 1957; however, clinical evaluation of abdomen and viscera was normal. Furthermore, the April 2014 VA examination reflects post-service diagnoses of inguinal and ventral hernias, which the Veteran reported that he underwent surgery for in the 1990’s (the records of which are unavailable), and residual surgical scars. However, while the April 2014 VA examiner opined that the Veteran’s claimed hernia disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, he did not offer a rationale for such opinion. Rather, he merely recited the findings from the STRs and noted the Veteran’s reported medical history. Consequently, the Board finds that a remand is necessary in order to obtain an addendum opinion. Further, VA treatment records reflect the Veteran’s report of receiving treatment from a private provider, Dr. Mea, which he reiterated at his December 2020 Board hearing. As such records are not on file, the Veteran should be provided an opportunity to identify any outstanding private treatment records so that such may be obtained for consideration in his appeal. The matters are REMANDED for the following action: 1. The Veteran should be also given an opportunity to identify any outstanding private records relevant to his claim on appeal, to include those from Dr. Mea. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. At least two (2) attempts of obtain records from any identified source must be made. 2. After associating all outstanding records to the extent possible, forward the record, to include a copy of this remand, to an appropriate clinician in order to obtain an opinion addressing the nature and etiology of the Veteran’s claimed residuals of a hernia. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a hernia had its onset in, or is otherwise related to, the Veteran’s military service, to include his report of an in-service injury when opening a hangar door where he felt a pop right above his belly button, and his in-service treatment for stomach complaints in May 1957 and report of stomach trouble at his November 1957 separation examination. If so, please identify all residuals. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.