Citation Nr: 21010025 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-65 123 DATE: February 23, 2021 ORDER Entitlement to service connection for a hernia disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s hernia condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a hernia disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1966 to February 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in December 2019. The Board remanded this matter in April 2020 for additional development. The matter is now returned to the Board for further appellate review. Entitlement to service connection for a hernia Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran contends that his ventral hernia condition resulted from his active duty service when he was struck in the stomach by a rifle butt. Specifically, the Veteran points to treatment notations in his April and May 1966 service treatment records (STRs) for a hospitalization where an upper-gastric bleed was suspected as evidence that his ventral hernia condition started in service. The Board acknowledges the Veteran’s contention that being struck in the stomach by a rifle butt in service caused him to be hospitalized on active duty and resulted in the hernias diagnosed after service. The Board does not find the contention of being struck in the stomach by a rifle butt in service and then hospitalized for this injury to be credible; however, as it is not supported by the evidence of record. When a Veteran’s service treatment records do not corroborate his claim of an in-service injury, this absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan, 451 F.3d at 1336-37 (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board “must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239, n.7 (2012) for the proposition that “the absence of evidence cannot be substantive negative evidence without ‘a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact.’“). That foundation may be laid by a finding that the fact at issue would ordinarily have been recorded, in which case the Board may legitimately infer from the absence of such a record that it did not occur. See id.; Buczynski, 24 Vet. App. at 224 (noting that under Federal Rule of Evidence 803(7), “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide “useful guidance,” and quoting federal case law to the effect that “[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur” (internal citation omitted)). The 1966 hospital admission records reflect that the Veteran did not report any abdominal injury when he was admitted for treatment in April 1966, and no abdominal injury or trauma was found on examination at that time. Instead, the records show he was admitted for treatment based on complaints of fever, chills and sore throat. The only findings related to the gastrointestinal system were a suspected upper gastric bleed based on a black tarry stool with associated anemia. The Board finds that if the Veteran had sustained physical trauma to the abdomen prior to admission to the hospital in April 1966, he would have likely reported this injury to the medical personnel and abdominal trauma would have likely been noted on examination. Moreover, although the Veteran also had a complaint of epigastric pain in 1968, no history of trauma was noted and no clinical findings related to trauma or injury were noted at that time. Again, the Board finds it likely that if the Veteran had incurred abdominal trauma or injury in service, he would have reported this history when seeking treatment for epigastric pain. Thus, the Board finds the absence of evidence of trauma or injury to the abdomen in the 1966 and 1968 medical records in service to be negative evidence and to weigh against the Veteran’s contention of incurring abdominal trauma or injury in service. Accordingly, the Board finds the lack of documentation of any physical trauma to the abdomen at the time of the Veteran’s hospital admission in April 1966 weighs against his contention of sustaining an abdominal injury at that time. The only competent evidence of record addressing the etiology of the Veteran’s hernia condition is a September 2020 VA opinion in which the examiner opined that the Veteran’s hernia condition was less likely than not incurred in or caused by his active duty military service. For the reasons explained below, the Board finds this opinion to be highly probative. The examiner initially noted that no ventral hernias were noted in the Veteran’s service records and that the Veteran’s first hernia diagnosis occurred in 1996 and was followed by surgical repair in February 1996 and then a subsequent hernia diagnosis and surgical repair in November 2016. The September 2020 VA examiner then reviewed the Veteran’s STRs and noted the hospitalization in April and May 1966 that the Veteran referenced as being related to his hernia condition as well as noting a 1968 reference to intermittent mid-epigastric pain. With respect to the 1966 hospital admission, the examiner noted that in April 1966, the Veteran was hospitalized for a history of upper gastro bleed which was suspected on the basis of a black, tarry stool with mild anemia. The examiner also noted that this hospital admission was due to sore throat, chills and fever with evidence of an upper gastro bleed based on a black tarry stool with associated anemia noted on the first day of admission. The examiner observed that the hospital work up did not reveal a cause for the upper gastro bleed and that the hospital records from this admission note no abdominal trauma or ventral hernia. The examiner also noted the July 1968 reference to intermittent mid-epigastric pain but observed that a ventral hernia is a bulge through an opening in the muscles on the abdomen and that the examinations of the Veteran in 1966 and 1968 did not indicate any such physical findings. The examiner summarized by explaining that the symptoms described in the 1966 and 1968 episodes are not symptoms associated with ventral hernias and that the 1966 and 1968 clinical events would not be associated with the subsequently diagnosed ventral hernias. The September 2020 examiner reviewed the Veteran’s file, examined the Veteran in-person, and provided a well-reasoned rationale to support the negative nexus opinion. The Board finds the September 2020 VA opinion highly probative and affords it substantial weight. As there are no contrary competent opinions of record, the Board finds the preponderance of the evidence weighs against a finding that the Veteran’s ventral hernia condition is related to his military service. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.