Citation Nr: 21010042 Decision Date: 02/24/21 Archive Date: 02/23/21 DOCKET NO. 14-44 484 DATE: February 24, 2021 ORDER Service connection for an umbilical/abdominal wall hernia is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include hiatal hernia, is remanded. FINDING OF FACT An umbilical/abdominal wall hernia is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for an umbilical/abdominal wall hernia have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to August 1983. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in December 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2018 and January 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for an umbilical/abdominal wall hernia. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his umbilical/abdominal wall hernia had its onset during service, and he has had continuous symptoms since such time. In this regard, at his May 2018 Board hearing, he testified that he began experiencing hernia symptoms after he jumped off a loading dock. He also stated that his symptoms worsened when he moved equipment as a part of his military duties. In this regard, the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of an umbilical or abdominal wall hernia; however, an April 1983 record indicates that he twisted his knee while pulling equipment at work. In November 2012, a private treatment note indicates that the Veteran had a bulge near his umbilicus for a number of years that became progressively larger, but he did not have any pain associated with his hernia until he recently picked up a heavy object and noticed a sudden onset of severe pain. The Veteran’s private physician, Dr. B.H., noted his reports groin pain while in service; however, he did not find evidence of a groin hernia. Rather, Dr. B.H. explained that the Veteran underwent a laparoscopic Nissen fundoplication in 1998 with passage of a trocar through the umbilicus, thus, his hernia was most likely related to the trocar placement. As such, Dr. B.H. performed a procedure to repair the small incisional hernia. Additionally, the Veteran’s VA treatment records include umbilical hernia surgical repair in the “Active Problems” list, and indicate that he had an abdominal hernia repair in April 2014 and an umbilical hernia, which was a re-injury from a previous repair, and was undergoing surgery in March 2015. In May 2018, the Veteran’s private physician, Dr. B.B., found that the timing of the onset of symptoms of the Veteran’s abdominal wall hernia was during his active duty service. As rationale, he stated that the Veteran had a history of abdominal hernias for many years. He reported similar abdominal pain while in the military and stated that he was responsible for the moving of heavy equipment. Dr. B.B. further stated that the type of hernia that the Veteran had was consistent with the physical exertion he described. Dr. B.B. noted that, in August 2012, the Veteran presented with a bulge near the umbilicus that had been present for years; thus, he was referred to Dr. B.H., who performed the abdominal wall repair. However, in its August 2018 remand, the Board found that the May 2018 private opinion was inadequate to award service connection as Dr. B.B. failed to address Dr. B.H.’s opinion that the Veteran’s umbilicus hernia was most likely related to his surgery for GERD. Thus, Dr. B.H.’s statement, who performed the hernia repair, directly contradicted Dr. B.B.’s statement and, as such, Dr. B.B.’s opinion was based, at least in part, on an inaccurate factual premise and, thus, is afforded no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the Board remanded the case in order to obtain a VA opinion addressing the etiology of the Veteran’s umbilical/abdominal hernia, which was rendered in March 2019. However, in the January 2020 remand, the Board found such opinion inadequate to decide the claim as: (1) the examiner’s unfavorable opinion appeared to be based solely on the absence of related complaints during service; (2) he did not address or consider the Veteran’s in-service duties or lay statements; and (3) appeared to have related the Veteran’s “hernia” to surgeries performed for his GERD and hiatal hernia, but did not clearly identify the type of hernia for which the opinion was provided. Accordingly, the Board remanded the case for an addendum opinion. Thereafter, a VA opinion was obtained in January 2020. At such time, the examiner determined that the Veteran’s umbilical/abdominal wall hernia was less likely than not proximately due to or the result of his GERD. In support thereof, he referenced the November 2012 private opinion from Dr. B.H.; a March 2013 statement indicating that the Veteran had a number of surgeries to correct his GERD; and the March 2019 VA examination report which reflected that the onset of the Veteran’s symptoms related to his diagnosed ventral/umbilical hernia was in 1992 while lifting equipment. Here, the examiner noted that, during the March 2019 VA examination, the Veteran complained about abdominal weakness and pain when lifting heavy objects. He further noted that, at such time, the Veteran indicated that it was currently recommended he not lift over 30 pounds, but asked to have it raised to 50 pounds so that he could work at Home Depot, and his doctor stated “at your own risk.” Thus, the examiner concluded that the Veteran’s records supported that his umbilical/abdominal wall hernia was related to overuse while lifting, and did not support that such disorder began after or due to his surgeries related to his GERD. Further, the examiner determined that the Veteran’s umbilical/abdominal wall hernia was less likely than not aggravated beyond its natural progression by his GERD and hiatal hernia, or the surgeries performed for such disorders. In support thereof, he reported that the Veteran’s umbilical/abdominal wall hernia would have to be aggravated by physical stresses/pressures rather than a disorder of the esophagus/stomach or surgeries related to such as the records supported that his umbilical/abdominal wall hernia was related to overuse while lifting. Moreover, in a September 2020 addendum opinion, a different VA examiner noted that he reviewed all of the evidence in the Veteran’s service treatment records along with his lay statements. In this regard, he reported that it was noted the Veteran had a history of GERD since the age of 13; however, such was independent of his abdominal wall hernias. The examiner further observed that a review of the objective data demonstrated that the first mention of any hernia was a hiatal hernia in 1992, which was an internal hernia that was not seen or palpated externally. Additionally, he indicated that, while the Veteran underwent a Nissen fundoplication surgery to correct his hiatal hernia and treat his GERD, there was no notation of an external hernia at that time, or such would have presumptively been surgically treated at such time. Furthermore, the examiner stated that, in 2012, the Veteran complained of bulging in his abdomen that had been there for years, but became symptomatic after doing some heavy lifting at such time. Here, taking all factors into consideration, he concluded that it appeared as though the abdominal wall hernia occurred sometime after the 1998 fundoplication surgery and became symptomatic in 2012 when it was repaired; therefore, his abdominal wall hernia occurred years after he left the military. Thus, there was no nexus established between the Veteran’s umbilical/abdominal wall hernia and his service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for an umbilical/abdominal wall hernia. In this regard, the Board accords great probative weight to the January 2020 and September 2020 VA examiners’ opinions as they are predicated on a thorough review of the record, which includes medical records concerning the treatment in question, the Veteran’s service treatment records, post-service treatment records, and his lay statements (in which his contentions are fully articulated). Additionally, such opinions considered all of the pertinent evidence of record and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In contrast, the November 2012 private opinion by Dr. B.H. does not contain a rationale. See Nieves-Rodriguez, supra. Thus, the Board finds that such opinion is outweighed by the highly probative January 2020 and September 2020 VA examiners’ opinions. The Board has also considered the Veteran’s lay statements asserting that his umbilical/abdominal wall hernia is related to his military service and/or his GERD or hiatal hernia. However, the Board finds that the question regarding the potential relationship between the Veteran’s diagnosed umbilical/abdominal wall hernia and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran is competent to describe his in-service experiences and current symptomatology, the Board accords his statements regarding the causation of such disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In the instant case, the question of diagnosis and causation of his umbilical/abdominal wall hernia involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as the Veteran does not have the appropriate medical training and expertise to offer an opinion on such matters, his lay assertions in this regard have no probative value. The Board recognizes that the Veteran is also pursuing service connection for GERD, to include hiatal hernia, which is being remanded herein for additional development; however, the outcome of the instant claim is not inextricably intertwined such remanded claim as the probative evidence demonstrates that the Veteran’s umbilical/abdominal wall hernia is not caused or aggravated by his GERD/hiatal hernia, to include any surgeries performed for the treatment of such disorder. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). Thus, even if service connection for GERD and/or hiatal hernia is awarded in the future, the fact that such disorder(s) would be service-connected would not legally or factually affect the Veteran’s claim for service connection for an umbilical/abdominal wall hernia as the preponderance of the evidence still showed no nexus between such disorder and his GERD and/or hiatal hernia. Therefore, the Board finds that an umbilical/abdominal wall hernia is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. Thus, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for an umbilical/abdominal wall hernia. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for GERD, to include hiatal hernia. The Board initially remanded the Veteran’s claim for service connection for GERD and hiatal hernia in August 2018 in order to afford him a VA examination so as to determine the nature and etiology of such disorders. Thereafter, he underwent a VA examination in March 2019; however, as noted in the Board’s January 2020 remand, the examiner failed to consider the Veteran’s reports of abdominal cramps and nausea 18 days following his entrance into service, and a November 1992 post-service treatment record indicating that his reflex had become progressively worse over the years. Therefore, the Board again remanded the claim in order to obtain an opinion addressing the above matters. In this regard, the remand directed the examiner to specifically address: (1) the Veteran’s in-service reports 18 days following his entrance into service; (2) the November 1992 post-service treatment record; and (3) a March 2013 statement indicating both GERD and hernia developed during service. Thereafter, an addendum opinion was obtained in January 2020; however, the Board finds that such opinion does not substantially comply with the Board’s January 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In pertinent part, the January 2020 VA examiner found that there was clear and unmistakable evidence that the Veteran’s GERD and hiatal hernia pre-existed service and were not aggravated beyond their natural progression by an in-service injury, event, or illness. As rationale for such opinion, the examiner reported that the Veteran’s available service treatment records did not indicate that his GERD or hiatal hernia worsened during service. Specifically, he noted that the Veteran’s entrance (May 1981) and separation (July 1983) examinations reflect that he did not complain about such disability and the related examinations were normal. However, he failed to address the Board’s specific inquiry with respect to the Veteran’s in-service reports, the November 1992 post-service treatment record, and the March 2013 statement; rather, he improperly relied upon the absence of evidence in the Veteran’s service treatment records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, another remand is necessary in order to obtain an addendum opinion addressing such matter. The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to the VA examiner who rendered the January 2020 opinion addressing the etiology of the Veteran’s GERD, to include hiatal hernia, or an appropriate clinician if he is unavailable, for an addendum opinion. Following a review of the record, the clinician should address the following inquiries: (A) Is there is clear and unmistakable evidence that the Veteran’s pre-existing GERD and/or hiatal hernia did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? (B) If there was an increase in the severity of the Veteran’s pre-existing GERD and/or hiatal hernia, was such increase clearly and unmistakably due to the natural progress of the disease? In addressing such inquiries, the clinician must specifically discuss: (1) the Veteran’s reports of abdominal cramps and nausea 18 days following his entrance into service, (2) the November 1992 post-service treatment record indicating the Veteran’s reflex had become progressively worse over the years, and (3) the March 2013 statement indicating both GERD and a hernia developed during service. The examiner is advised that the sole basis of a negative opinion may not be the lack of complaints, treatment, or diagnosis referable to GERD and/or hiatal hernia in the Veteran’s service treatment records. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.