Citation Nr: 21023569 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-26 562 DATE: April 21, 2021 ORDER Service connection for ventral hernias is granted. REMANDED Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT Resolving any reasonable doubt in the Veteran’s favor, the evidence is sufficient to establish that the Veteran’s current ventral hernias originated during service. CONCLUSION OF LAW The criteria for service connection for ventral hernias have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded the claims for VA examinations and etiology opinions. The Board notes that the other claims addressed by the December 2019 Board decision, to include a claim that was the subject of a joint motion for remand before the US Court of Veterans Appeals, will be addressed in a future Board decision. In this decision, the Board addresses the Veteran’s claims for service connection for hernias and for hemorrhoids. The latter claim will be discussed below in the remand section. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the evidence regarding service connection for hernias, on the Veteran’s March 1967 entrance examination all systems were found to be normal. The Veteran has related that he never had a hernia until during service in Vietnam, at which time he reports underwent abdominal surgery for the condition. At a separation examination in January 1969, the Veteran answered “No” to whether he at that time or ever previously had a hernia. At a May 2019 Board hearing, the Veteran testified that the first time he ever had a hernia was during service. He stated that he has had to have multiple hernia surgeries through the years since service. The Veteran’s partner, who has known him for over 40 years, testified that Veteran has had the hernia problems recurring since service. Following the Board’s prior December 2019 decision, a new VA examination was provided in December 2020. The examiner noted that the Veteran’s separation examination showed “abdominal wall surgery - type of surgery is unknown,” with the Veteran stating that the surgery was for hernia repair. The December 2020 examination report marked the box for ventral hernia, and the examiner wrote that physical examination showed two hernias present. In the etiology opinion, the examiner stated that “according to the medical records it is possible the hernia originated during military service, causing a need for abdominal surgery” and that “the hernia is related to military service based on the need for an abdominal surgery.” The examiner further offered that the in-service hernia “was acute only” and “[had] resolved,” although he also remarked that “[o]ne of the risks associated with hernia repair surgery is that the hernia can return.” Based on all the evidence, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for hernias is warranted. The December 2020 examiner found that the Veteran’s hernia was incurred in service, leading to the need for abdominal surgery. While the examiner remarked that “it is possible the hernia originated during military service,” the Veteran is presumed sound upon entrance to service since he was found to be of normal health at the March 1967 entrance examination, and the evidence adequately supports that the Veteran’s hernia first appeared during service. 38 U.S.C. § 1111. Moreover, though the examiner remarked that the hernia was “acute only” and had resolved following surgery, service connection is warranted where any current condition was first incurred in service or is otherwise etiologically related to service; indeed, the examiner remarked that a hernia “can return.” See 38 U.S.C. § 1110. Finally, the Veteran and his partner testified that the Veteran has had hernia problems recurring since service, testimony that the Board finds credible. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Accordingly, resolving any reasonable doubt in the Veteran’s favor, the evidence is sufficient to establish that the Veteran’s current hernia condition originated in service, and thus service connection is granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Regarding the claim for service connection for hemorrhoids, the Board finds that further remand unfortunately is required. As directed by the Board’s prior December 2019 decision, a new VA examination and opinion was provided in December 2020. The examiner considered evidence including the Veteran’s March 1967 induction examination, which found the Veteran in normal condition without any notation of hemorrhoids, as well as an October 1963 report of medical history on which the Veteran answered “Yes” to whether he at that time or ever previously had piles or rectal disease. Based on this evidence, the examiner found that the Veteran’s hemorrhoids clearly and unmistakably preexisted service. The examiner further stated that the hemorrhoids were clearly and unmistakably not aggravated by service, but she did not provide any rationale to support that conclusion. The Veteran has testified that during service in Vietnam he sought treatment for hemorrhoids, including infected hemorrhoids, but was simply given “gauze and peroxide” before being sent back to the field. At the December 2020 opinion the Veteran reported he subsequently underwent surgery for hemorrhoids during service. Because the Veteran’s entrance examination did not note any preexisting hemorrhoids at the time of his induction to service, he is presumed sound with regard to that condition. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This presumption of soundness may be rebutted only where it is shown that the condition clearly and unmistakably existed before service as well as clearly and unmistakably was not aggravated by service. Though there may be sufficient evidence to find hemorrhoids clearly and unmistakably existed before service, based on the evidence of record the Board finds that the evidence is not sufficient to clearly and unmistakably establish that the Veteran’s preexisting hemorrhoids were not aggravated by service. 38 U.S.C. § 1111. As this latter element has not been met, the presumption of soundness is not rebutted, and the Veteran therefore will be considered to have been in sound condition regarding hemorrhoids at the time of induction to service. 38 C.F.R. § 3.304(b); id. In turn, the Veteran’s current claim is treated as an ordinary claim for direct service connection. Wagner. v. Principi, 370 F.3d 1089, 1096 (2004) (“[I]f the government fails to rebut the presumption of soundness under section 1111, the veteran’s claim is one for service connection.”). Regarding a direct link to service, the December 2020 examiner offered a negative opinion based on her conclusion that the hemorrhoids were “noted prior to military service.” However, as discussed above, in this case the Veteran is considered to have been of sound health regarding hemorrhoids at the time of induction, so the December 2020 conclusion is based on an inaccurate fact for purposes of this case. Where a VA opinion is based on an inaccurate factual premise, the opinion is inadequate and the Veteran must be provided a new opinion. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran’s hemorrhoids condition. If the author of the December 2020 VA opinion is available, obtain the opinion from her. If the clinician states that a new examination would be helpful, schedule one. The clinician must opine on both of the following questions. The clinician is advised that, for purposes of these opinions, the Veteran must be presumed to have NOT had hemorrhoids at the time of entrance to service (i.e., that hemorrhoids did not pre-exist service). (a) Is it at least as likely as not that the Veteran’s current hemorrhoid condition was incurred in or originated in service? (b) Is it at least as likely as not that the Veteran’s current hemorrhoid condition is etiologically related to service? In rendering the opinion, the clinician should consider and discuss that the Veteran sought treatment for his hemorrhoids when he was in the field, including for infected hemorrhoids, for which they gave him only “gauze and peroxide” because they wanted him to get back into action; and that the Veteran eventually underwent hemorrhoid surgery while in service. 2. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.