Citation Nr: 21010107 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-08 181 DATE: February 24, 2021 ORDER Entitlement to service connection for schizophrenia is denied. Entitlement to service connection for inguinal hernia, also claimed as femoral hernia is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that schizophrenia began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the inguinal hernia began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for schizophrenia are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for inguinal hernia are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1976 to September 1976. He was separated from service after less than one month under the Trainee Discharge Program. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2009 and October 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified, through an interpreter, before the undersigned Veterans Law Judge at a hearing in October 2018. A transcript is of record. The Board remanded the appeal in November 2019. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as psychoses, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for schizophrenia The Veteran seeks service connection for schizophrenia. He asserts that his schizophrenia is related to an assault that he reports occurred during service. At his hearing, the Veteran testified that while he was sleeping, the drill sergeant came, punched him in the face, grabbed him by the shirt, kicked him in the groin, and dragged him down a flight of stairs. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records are limited, but silent for an in-service assault. The June 1976 report of medical history showed the Veteran indicated he was in good health, with no reported health problems. The Veteran’s medical enlistment examination shows similarly normal clinical findings. Personnel records show the Veteran was discharged in August 1976 due to an inability to speak and comprehend English. Service treatment records and personnel records do not contain an indication of the reported assault, or show treatment for injuries that could be attributed to the assault. In late September, the Veteran was admitted with symptoms of increasing restlessness, insomnia, aggressive tendencies, hallucinations, and suicidal tendencies. No previous hospitalizations or treatment was noted. Providers tentatively diagnosed schizophrenia, undifferentiated type. Post-service treatment records reveal ongoing psychiatric treatment. In May 1979, the Veteran appeared for a psychiatric evaluation. He was noted as very anxious and depressed. In July 1980, progress notes indicated the Veteran eloped from the hospital. He was noted as nervous, withdrawn, and aloof. A July 1992 private addendum opinion affirmed that the Veteran’s schizophrenia was prescribed by the traumatic picture that occurred in September 1976. He noted that schizophrenia has a hereditary component, but can present in stressful situations such as an accident. He opined that the Veteran, according to family members, was assaulted and discriminated against while in service. He concluded that this traumatic event precipitated the occurrence of the Veteran’s schizophrenia. The Veteran was afforded a VA examination in February 1999. The examiner diagnosed schizophrenia as the correct and current neuropsychiatric condition. The examiner opined that the symptoms and behavior described on the available psychiatric records clearly describe a severe neuropsychiatric condition that manifested after military service. The examiner explained that there is no evidence of any event occurring during service which has been claimed as the onset of his condition. The examiner indicated that he had considered the possibility that the Veteran’s nervous condition could have been present prior to service and the possibility that it is as likely as not that the condition was aggravated by his brief active military experience, but indicated that there is no evidence, other than speculation based on the statements given by others, that there was any event responsible for the onset of his condition during service. The Veteran underwent a private psychiatric evaluation by Dr. A.G. in January 2008. Dr. A.G. opined that the Veteran’s clinical picture is compatible with the presence of a traumatizing factor during his life process. He indicated that the Veteran’s level of function was adequate before entering the Armed Forces and cognitive and mental picture was affected in 1976, during the training process. Dr. A.G. indicated that the Veteran’s present signs compatible with the sexual military trauma screening, where the Veteran answered affirmatively on several premises. The Veteran submitted a private medical opinion dated in November 2018 from Dr. J.R., his treating provider in support of his claim. Dr. J.R. indicated that the schizophrenia was related to an onset or events while in service and that the Veteran began with symptoms after the aggression. He expressed the rationale as “[s]tarted [with] aggression had surgery done but symptom has not improved.” In an addendum opinion dated in October 2020, Dr. J. R. again noted that the Veteran reported he was assaulted in August 1976 while in basic training and sustained trauma to his groin. Dr. J. R. stated, “[s]ubsequently he underwent surgery on his left testicle. He at the same time developed schizophrenia for which he has had multiple hospitalizations, and procedures such as shock therapy.” The Board concludes that, while the Veteran has a diagnosis of schizophrenia, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Service connection may be granted for a psychosis that manifests to a compensable degree within one year from separation. The Veteran received treatment for schizophrenia in September 1976, approximately one month after his discharge from service. However, the Veteran did not serve 90 days or more. Thus, entitlement on a presumptive basis in this case is prohibited. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. §§ 3.307(a)(1), 3.309. The Board has considered the favorable nexus opinions; however, the opinions from Drs. A.G. and J.R. are not probative. These favorable medical opinions are based solely on the Veteran and his family’s historical accounts of an in-service assault that the Board has not found to be credible. To the extent that these clinicians have causally connected the Veteran’s schizophrenia to his reported in-service assault, they are not probative or sufficient to establish causal nexus. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The February 1999 VA examiner’s unfavorable opinion is of greater probative weight. The opinion is well reasoned, detailed, and consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). While the Veteran is competent to report that he suffered an assault during service, his reports are not credible due to internal inconsistency and inconsistency with other evidence in the record. In this regard, the service treatment records, personnel records, and post-service medical records from September 1976 do not reference any injury or injuries of traumatic origin. While the absence of contemporaneous medical 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 v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board does not find it plausible that the Veteran would suffer a serious assault with a resulting hernia and possibly other traumatic injuries, but that urology and psychiatric medical records from shortly after the reported assault would not contain some mention of either the traumatic assault or residual injuries sustained. The Board recognizes that the Veteran and his family believes his condition is related to an in-service assault; however, the lay statements and testimony that he suffered an assault from fellow service members are not found credible. In sum, the preponderance of the competent and credible evidence weighs against finding that the Veteran’s schizophrenia condition was incurred in service or is otherwise attributable to service. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. 2. Entitlement to service connection for inguinal hernia, also claimed as femoral hernia The Veteran seeks service connection for a hernia. He asserts that his hernia is related to an assault during active service. He reports that he was kicked in the groin during this assault, and sustained a hernia injury that required surgery. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records are sparse, but are silent for any indication of an assault, or treatment for an inguinal hernia. The June 1976 report of medical history showed the Veteran indicated he was in good health, with no reported health problems. The Veteran’s medical enlistment examination shows similarly normal clinical findings. Post-service treatment records show the Veteran sought treatment testicular pain after his discharge from service. A September 1976 note show a referral to a urology clinic as soon as possible. A September 1976 medical certificate showed the Veteran reported off and on pain at the right testicle. An undated medical certificate shows the Veteran sought treatment for left testicular pain and swelling, starting about a week prior to the visit. The Veteran reported a history of the condition before that had resolved, but indicated that the pain had come back again. Treatment providers assessed hernia pain with previous trauma. The Veteran submitted a November 2018 private nexus opinion in support of his claim from Dr. J.R. He opined that the Veteran’s inguinal hernia is related to or caused by injured from an in-service assault. In an October 2020 addendum, Dr. J.R. clarified that the Veteran reported that in August 1976, while in basic training, he was assaulted and sustained trauma to his groin. The Board concludes that, while the Veteran has a diagnosis of residuals from an inguinal hernia, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Board recognizes that the Veteran is competent to report evidence within the realm of his personal knowledge, including the claimed in-service incident. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds such reports to not be credible as they are internally inconsistent with his treatment records. The Board reiterates that the assault report by the Veteran is not consistent with the contemporaneous record. Service treatment records are silent for any indication of an assault, or treatment for an inguinal hernia. Post-service medical records show the Veteran received treatment for testicular pain after his discharge, but do not contain any indication of an assault or attribute the testicular pain to a prior assault during active service. Thus, his statements attributing his hernia to such an event are not credible or probative to establish an in-service event or injury. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the potential relationship between the Veteran’s current residual hernia disability and his period of service, is complex in nature and falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). There is no indication that the Veteran possesses the medical knowledge to attribute his condition to events or injuries in service. Therefore, he is not competent to opine on this complex medical question and these lay assertions are insufficient evidence to establish etiology. The Board has also considered the favorable opinions from Dr. J.R. offered in November 2018 January 2020. A review of the statements establishes that the favorable medical opinions are based solely on the Veteran and his family’s historical accounts of an in-service assault. To the extent that these clinicians, based upon the Veteran’s lay reports, have causally connected the history of an inguinal hernia to his reported in-service assault, the Board does not find the claimed assault credible. Therefore, the opinions based on such are not probative or sufficient to establish causal nexus. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable and service connection for a residual hernia disability is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.