Citation Nr: 21069367 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-00 461 DATE: November 18, 2021 ORDER Entitlement to service connection for right-sided abdominal hernia is denied. FINDING OF FACT A right-sided abdominal hernia disability did not have its onset in service; continuity of symptomatology is not established; and any current right-sided abdominal hernia disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW A right-sided abdominal hernia disability was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1951 to October 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied entitlement to service connection for a right-side hernia. The Veteran filed a notice of disagreement (NOD) in November 2016 and a statement of the case (SOC) was issued in December 2016. He subsequently perfected a timely appeal. In April 2019, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In Board decisions dated September 2019, December 2020, and August 2021, the claim was remanded for further evidentiary development. As will be described below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was most recently issued in September 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for right-sided abdominal hernia. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events, the presence of disability or symptoms of disability subject to lay observation, or relaying a diagnosis provided by a medical professional. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Here, the Veteran asserts entitlement to service connection for a right abdominal hernia, which he contends was incurred during his active duty service. Specifically, he testified that he developed a right-side hernia as a result of a February 1952 motor vehicle accident (MVA). See, e.g., the April 2019 Board hearing transcript. The Veteran served on active duty from October 1951 to October 1953. The Board notes that some of his service personnel and treatment records have been determined to be fire-related. See the National Personnel Records Center (NPRC) response dated September 2015. To this end, the United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). In any event, the Veteran's claims file does contain numerous service treatment records, including the entrance and separation examinations from his active duty service. Notably, the available service records include a summary of information from Hospital Admission Cards, which indicate that the Veteran experienced an injury to the abdomen, abdominal wall, and pelvis at the time of the February 1952 motor vehicle accident (MVA). The Veteran's contentions of in-service injury are therefore corroborated by the evidence of record. With respect to current diagnosis, the Veteran's VA treatment records dated in November 2016 document a diagnosis of right-side abdominal hernia. Pursuant to a September 2019 Board Remand, the Veteran was afforded a VA examination in September 2020 at which time the examiner indicated that the "Veteran was never diagnosed with a right sided abdominal hernia. He has a fullness on that side, noticed a few years back." In a September 2020 VA medical opinion, the examiner indicated that the Veteran's claimed abdominal hernia was less likely than not incurred in or aggravated by his active duty service because there is "[n]o evidence of right sided abdominal hernia on exam." In a December 2020 decision, the Board determined that the September 2020 VA medical opinion was inadequate because it was not premised upon a thorough review of the Veteran's claims file. Accordingly, the appeal was remanded in order to obtain a new VA medical opinion. A VA opinion was obtained in February 2021, at which time the examiner determined that the claimed right abdominal hernia was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted, There is no evidence of any abdominal condition until the 1962 [compensation and pension] exam, at which 'abdominal swelling at times' was noted. There were no clinical findings and no diagnosis was rendered. There was no evidence of an abdominal hernia. The 2020 DBQ was also absent a diagnosis of hernia. No diagnosis was rendered. There is no nexus established in service or at separation. The February 2021 VA examiner further concluded, "the likelihood of an individual suffering a significant abdominal injury at an accident in February 1952 and enduring a 10-year span (using the 1962 [exam]) and an additional 58-year span (2020 exam), is extremely low." In an August 2021 decision, the Board determined that, in rendering the opinion, the February 2021 VA examiner relied upon the September 2020 VA examination and medical opinion, which the Board had previously determined to be inaccurate. The Board therefore remanded the claim a third time in order to obtain another VA medical opinion. Pursuant to the August 2021 Board remand, a VA medical opinion was obtained in September 2021 at which time the examiner reviewed the Veteran's VA claims file to include his medical history and prior Board remand instructions. The September 2021 VA examiner then determined that the claimed right-sided abdominal hernia was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained, "[n]o chronic diagnosis was made for abdominal hernia on active duty. There was no evidence of disruption of the abdominal wall which could cause a hernia." The examiner noted that "[n]o assessment/diagnosis of a hernia is mentioned in association with his 1987 TURP, 1999 Colon cancer resection or 2002 VA Intake. Abdominal swelling noted in1962 is not diagnostic of a hernia." The examiner opined that the "Veteran is competent to report symptoms, however objective data does not support lay statements of chronicity or the chronicity of diagnosis. No imaging to date has confirmed a hernia." The examiner clarified, "[s]ince 2016, some providers have diagnosed hernia, others have not. Veteran with abdominal surgery in 1999 which most likely involved abdominal wall surgery. Prior abdominal surgeries are well known causes of hernias. If a hernia is confirmed via imaging, it is less likely than not due to MVA on AD and more likely due to prior surgery." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the September 2021 VA medical opinion, the examiner found it less likely than not that there was a nexus between the claimed disability and the Veteran's in-service injury. The examiner's conclusions, as expressed in the September 2021 VA medical opinion, were based on a thorough review of the record, including the lay statements and medical evidence submitted by the Veteran. The examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the September 2021 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Given the explanation provided by the September 2021 VA examiner and the fact that the examiner clearly considered all relevant evidence and facts, the Board finds that the VA medical opinion provides an adequate basis for consideration of whether the Veteran suffers from a right-sided abdominal hernia, which is medically related to his military service. Accordingly, the Board finds that the medical evidence demonstrating the absence of nexus between the claimed right-sided abdominal hernia and the Veteran's active duty service outweighs the medical evidence suggestive of a nexus. The Board has carefully considered the contentions of the Veteran that his claimed right-sided abdominal hernia was due to his military service. As noted above, the Board has previously determined that the Veteran's assertions of in-service injury and post-service symptoms to be both competent and credible. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Board herein finds that the Veteran's assertions of nexus concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). (Continued on the next page) The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the record, including post-service medical evidence, September 2021 VA medical opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the preponderance of the evidence is against the claim of entitlement to service connection for right-sided abdominal hernia. Thus, the benefit-of-the-doubt rule does not avail the Veteran. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.