Citation Nr: 21067257 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-01 603 DATE: November 3, 2021 ORDER Entitlement to service connection for a hernia condition is denied. REMANDED Entitlement to a rating in excess of 10 percent for metatarsalgia of the right foot, status post facture of the 3rd metatarsal (right foot disability), is remanded. FINDING OF FACT There is clear and unmistakable evidence the Veteran had a hernia condition that pre-dated his military service and that clearly and unmistakably was not aggravated during or by his service meaning not worsened beyond its natural progression. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a hernia condition. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to July 1983. This appeal to the Board of Veterans' Appeals (Board) is from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In that decision, in relevant part, the RO granted the Veteran's claim for service connection for metatarsalgia of his right foot, status post fracture of the 3rd metatarsal, and rated it initially as 10 percent disabling retroactively effective from June 12, 2017, so back to the date of receipt of his claim for this condition. The RO also conversely denied his claim for service connection for a hernia condition. In response, he appealed for a higher initial rating for his right foot disability. See Fenderson v. West, 12 Vet. App. 119 (1999). He also appealed the denial of service connection for his hernia condition. In December 2020, the Board, in relevant part, denied an initial rating higher than 10 percent for the Veteran's right foot disability, but instead remanded his claim for service connection for a hernia condition back to the RO (AOJ) for further development and consideration including so he could be examined for a medical opinion regarding the nature and etiology of this claimed disability, particularly in terms of whether it was caused or aggravated by his military service. There since has been the required compliance, certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). However, in a July 2021 Supplemental Statement of the Case (SSOC), the RO (AOJ) continued to deny this claim, so it is again before this Board and now being decided. Meanwhile, the Veteran appealed the Board's decision denying an initial rating higher than 10 percent for his right foot disability to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In June 2021, the contesting parties filed a Joint Motion for Partial Remand (JMPR) asking the Court to vacate the portion of the Board's decision denying this claim and to remand this claim back to the Board for further development and readjudication pursuant to agreement in the JMPR. The Court granted that JMPR in a July 2021 Order, so this claim also is again before this Board. However, to comply with the Court's Order granting the JMPR, the Board, in turn, is remanding this claim back to the RO (AOJ). Entitlement to Service Connection for a Hernia Condition The Veteran claims that his current hernia condition arises from a hernia treated prior to his military service that nonetheless was not "noted" upon his entry into service to establish that it necessarily pre-existed his service. Thus, he maintains there is a presumption of soundness when he entered service, meaning for all intents and purposes a presumption that he did not have any pre-existing hernia condition. But he also argues additionally that, even if it did pre-date his service, his service aggravated it to still justify granting service connection. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA regulation also provides that service connection may be granted for any disease initially diagnosed after discharge, when the evidence, including that pertinent to service, establishes disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Medical history reports do not qualify as a notation of preexisting condition, as contemplated by the regulation, but "will be considered together with all other material evidence in determinations as to inception." 38 C.F.R. § 3.304(b)(1). To rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). VA is not precluded from determining that the presumption of soundness is rebutted, even if there is conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) ("The clear and unmistakable evidentiary standard...does not require the absence of conflicting evidence."). A determination that a condition had its onset prior to service may be supported by contemporaneous evidence or recorded history in the record providing a sufficient factual predicate to support a medical opinion (Miller v. West, 11 Vet. App. 345, 348 (1998)) or a later medical opinion based on statements made by a Veteran about the pre-service history of the condition (Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000)). Cases in which the condition is noted on entrance, however, are governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). Accordingly, if a disorder was not "noted" upon entering service but is believed to have pre-existed, the law requires that VA show clear and unmistakable evidence that the disability preexisted service, and that the preexisting disability was NOT aggravated by service to overcome the presumption of soundness. Therefore, simply finding no evidence of aggravation by service is not sufficient. The pertinent statute and regulation stipulate that a pre-existing injury or disease will be considered to have been aggravated by active service when there is an increase in disability during such service, unless clear and unmistakable evidence shows the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows the increase is due to the natural progress of the disease. Furthermore, mere temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In cases involving combat, VA is prohibited from drawing a negative inference from silence in the service treatment records (STRs). See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Conversely, in cases where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service [or where the injury claimed is not alleged to have occurred in combat], the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), is distinguishable; the lack of documentation is service records must be weighed against the Veteran's statements.). Buchanan had held that lay evidence is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as treatment records (STRs, etc.). In this circumstance, that is, where a claimed injury, disease or event is not alleged to have occurred during combat, the Board must make two preliminary findings to rely on this negative inference (see Kahana): (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. So, it is true the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, as mentioned, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan, supra. The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). And, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.3 (2018). Here, and preliminarily, after filing his June 2017 claim, the Board sees the Veteran was treated in February 2018 for a supraumbilical ventral hernia, thereby establishing the required current hernia disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). But, to warrant the granting of service connection, there still also must be the required attribution of his current hernia disability to his military service either by showing his service aggravated it (if pre-existing) or caused it. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred [or aggravated] in service."). As alluded, there is indication this now claimed disability pre-existed the Veteran's service. His September 1979 medical examination report in anticipation of his enlistment into the military noted two conditions on entry a left lower quadrant scar and atypical left testicle. These are the only two conditions that immediately qualify as "noted on entry" for the purposes of 38 C.F.R. § 3.304(b). However, recruitment documents and his enlistment medical history report both note treatment for a left inguinal hernia, required to descend his left testicle, at age 9, so clearly and unmistakably before his military service began. The Veteran's STRs reflect treatment between October and November 1979 so, beginning just one month after he entered service for right side groin pain. His initial encounter on October 2 found a possible hernia, again citing the prior left side hernia repair at age 9, with a reported "9-year history" of pain. His right side was tender to palpation. However, his October 4th follow-up appointment unequivocally ruled out a hernia and resulted in a diagnosis, instead, of a groin ligament strain. That provider also cited a history of left side inguinal hernia. A November 5th surgical clinic consultation also found no evidence of a hernia or masses indicating a then current hernia. It noted there was a healed left inguinal hernia surgical scar. The only other STR mention of a hernia, or hernia-like symptoms, is the Veteran's medical report on separation from service, noting the "scar, (left) inguinal" in June 1983. His military service ended in July 1983. Post-service, the medical and testimonial record consistently cites the left side inguinal hernia treatment. In November 2017, the Veteran submitted a personal statement to the Board attesting that his hernia pain has bothered him since having to do flutter kicks and other abdominal exercises since boot camp. But a May 2021 VA medical opinion obtained on remand found clear and convincing evidence that the Veteran had a pre-existing medical condition (referring to his hernia) that was not aggravated by his service. As such, the Veteran's own statements and accrued medical history from September 1979 to the present overwhelmingly endorse a history of one-time surgical treatment for a hernia prior to his service. The Board resultantly finds the sum of this evidence sufficient to establish that he clearly and unmistakably had a hernia condition that pre-existed his service. See Miller, 11 Vet. App. at 348; Harris, 203 F.3d 1347. It nonetheless also bears repeating that the presumption of soundness still attaches unless there also is clear and unmistakable (obvious and manifest) evidence the pre-existing condition was NOT aggravated by the Veteran's service meaning not worsened at all or not worsened beyond the condition's natural progression. Aggravation requires an affirmative finding, based on the entire record, of an increase in disability manifesting during service, unless clear and unmistakable evidence shows the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The mere occurrence of symptoms, or temporary flare ups, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Here, the record on appeal does not contain any medical evidence tending to show the pre-existing hernia condition was aggravated during or by the Veteran's service. As alluded, there are no diagnoses of or treatment for any hernias in his STRs, so while in service. However, his STRs clearly reference his hernia before service, but by history, and provide credible, concurrent medical evidence that he was experiencing abdominal pain during service that he believed, albeit as a layman, might have been attributable to his hernia but ultimately was determined not to be. Thus, when considering these records in conjunction with his post-service statements, also, importantly, the VA examiner's May 2021 medical opinion obtained on remand of this claim, there is the required clear and unmistakable evidence the pre-existing hernia condition was not aggravated during or by the Veteran's service. The Veteran was treated for a hernia prior to service, in 1970 with surgical repair when he was just 9 years old and not again until in December 2006, so well after conclusion of his service. It is unclear whether that additional hernia is medically related to the diagnosis in February 2018 considered the "current disability," but, regardless, the fact remains there was no manifestation of any hernia following his discharge from service in July 1983 for many more years. This tends to refute any notion that his service aggravated the hernia he had before his service. In support of his claim, the Veteran submitted several medical articles discussing possible connections between different types of hernias and between inguinal hernias and hemorrhoids. Medical article or treatise evidence can support a claim; however, this is only true when the article addresses facts and circumstances specific to the Veteran's case and is combined with an opinion from a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). And, here, there is no such complimentary medical opinion in this instance, instead, as mentioned, only the May 2021 VA medical opinion obtained on remand that is entirely against the claim and that as the Board directed occur, considered the medical articles the Veteran had submitted in support of his claim. The May 2021 VA medical examiner found no evidence of hernia treatment in service and no evidence the pre-service hernia was aggravated by the Veteran's service. These findings are undisputed on record, and, since a layman, the Veteran is not competent to provide more probative opinion concerning whether his military service caused or aggravated his hernia. Jandreau, 492 F.3d at 1377; Kahana, 24. Vet. App. 428. Hence, the VA examiner's contrary disassociation of the Veteran's pre-service hernia from his in-service treatment and ultimate finding of no aggravation of the hernia pre-dating service is more probative and, indeed, dispositive of this question. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For the reasons and bases discussed, the Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for a hernia disability, so this claim must be denied. There is no reasonable doubt to be resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to an initial rating higher than 10 percent for the metatarsalgia of the right foot, status post fracture of the 3rd metatarsal (right foot disability). The Veteran's last VA foot examination was in September 2017, so some 4 years ago. The record contains just sparse treatment notes in the years since. However, he received rather recent treatment for increasing foot pain in June 2021 and, prior to that, reported worsening symptoms for service-connected conditions that he attributed to his right foot disability, i.e., his bilateral knee and right hip disabilities. When considering how long it has been since his last VA medical examination for compensation purposes concerning this right foot disability and his credible assertions of worsening symptoms during the years since, the Veteran needs to be reexamined to reassess the severity of this service-connected disability. See, e.g., Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Accordingly, this claim is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to this remaining claim for a higher initial rating for his right foot disability, whether VA or private treatment records, following proper procedures (38 C.F.R. § § 3.159(c) and (e)). 2. Then schedule the Veteran for an examination by an appropriate clinician to reassess the severity of his service-connected right foot disability. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.