Citation Nr: 21039724 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-45 101 DATE: July 1, 2021 REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to an initial compensable rating for bilateral inguinal hernias is remanded. REASONS FOR REMAND The Veteran had active service from October 1987 to August 1991, October 1993 to October 1996, October 2005 to November 2005, and July 2010 to August 2011. He also had additional service in the Reserves and National Guard. This appeal comes before the Board of Veterans' Appeals ("Board") consisting of merged appeal streams, arising from June 2015 and December 2017 rating decisions of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Veteran testified at a January 2021 Board's videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded the issue of "entitlement to an initial compensable rating for bilateral inguinal hernias" along with issue of "entitlement to service connection for diastasis recti" in March 2019. The Board notes that the RO has granted a 10 percent rating for bilateral inguinal hernia with effective date of May 2, 2019 and entitlement to service connection for diastasis recti in a September 2020 rating decision. The RO also issued a supplemental statement of the case in September 2020 denying entitlement to an initial compensable rating for the service-connected bilateral inguinal hernia and returned the matter to the Board for appellate consideration. The issue of entitlement to service connection for a back condition was appealed by the Veteran in a December 2018 VA Form 9. Hence, the matter is properly before the Board for appellate consideration. The Board notes that new evidence, which includes VA treatment records, has been associated with the Veteran's claims file after the September 2020 supplemental statement of the case. Generally, the Board may not consider evidence not previously reviewed by the Agency of Original Jurisdiction ("AOJ") unless a waiver of initial AOJ review is obtained from the Veteran or the representative. 38 C.F.R. § 20.1305(c). Here, the required waiver was provided by the Veteran's representative during the January 2021 Board's hearing. 1. Entitlement to service connection for a back condition is remanded. The Veteran asserts that he suffers from a back condition that is related to his military service. At the January 2021 Board's hearing, the Veteran testified that during his service in Army, Navy, Air Force, Marines and National Guard he performed many physical activities for 20 years that affected his back. Specifically, the Veteran asserted that being an artillery crewmember, he had to lift artillery rounds of 100 pounds and other weapons during his service, which affected his back and he had back pain during service. In a November 2017 statement, the Veteran also asserted that he had mid to lower back pain and slipped vertebra. He stated that he was assigned to field artillery, where his duties included lifting heavy equipment and gears frequently. Also, he had not sought treatment for back pain because it was sporadic and temporary initially, however, it began occurring more frequently lately. In a May 2018 statement, the Veteran asserted that he had been diagnosed with bone spur and chronic degenerative issues of spine; and related them with years of daily physical activities during service. The Veteran underwent a VA examination for his back condition in December 2017, in which the examiner noted the diagnosis of lumbar strain. The examiner stated that the service treatment record and medical records are silent for treatment or diagnosis of a back condition since service. Therefore, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran had a diagnosis of mid and lower back pain and slipped vertebra that incurred in or caused by the claimed back pain during military service. The Board finds the above December 2017 VA medical opinion inadequate because the examiner based the negative nexus opinion on lack of treatment for a back condition during service. However, the Board notes that the April 1994 and August 1996 service treatment records contain notation and complaints of back pain. Also, the examiner did not address the Veteran's contentions of physical activities during service, which included lifting artillery equipment and weapons. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, the Board notes that the April 2018 VA treatment record noted small anterolateral tractions spurs throughout the lumbar spine, and degenerative disc disease. Consequently, the Board finds a supplemental VA medical opinion is warranted on the nature and etiology of a back condition. 2. Entitlement to an initial compensable rating for bilateral inguinal hernias is remanded. At the January 2021 Board's hearing, the Veteran asserted that his bilateral inguinal hernias had worsened, and he had five surgeries. Also, he had lot of tenderness, numbness around the areas of surgery and could not perform many activities, such as scuba diving, rock climbing, bicycling, push-ups, sit-ups or lifting heavy objects. After the March 2019 Board's remand, the Veteran underwent a VA examination for bilateral inguinal hernias in May 2019. Based on the October 2018 hernia repair surgery, in a September 2020 rating decision, the RO assigned 100% rating from October 10, 2018 to December 31, 2018 for a recovery period under 38 C.F.R. § 4.30 because the VA doctor advised the Veteran to not work till December 3, 2018. Also, the RO assigned 10 percent rating from May 1, 2019 based on the May 2019 VA examination. The Board notes that after the May 2019 VA compensation and pension examination, the Veteran underwent another hernia repair at Boston VA Medical Center in September 2019, in which his left inguinal hernia was repaired. The operating surgeon noted that a segment of the Veteran's intestine was bulging through the abdominal wall and placed back into the abdominal cavity. Per November 5, 2019 notation in VA treatment record, the Veteran was advised to return to work in two weeks. This indicates that the Veteran had another recovery period after the September 2019 hernia repair until November 2019. Additionally, during the December 2019 VA treatment, the Veteran reported numbness below the inguinal scar. Also, soreness of hernia was noted during the September 2020 VA treatment. A new examination is appropriate when there is an assertion or indication of an increase in severity since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). Based on the above described evidence of record, the Board finds that there is an indication that the Veteran's service-connected bilateral inguinal hernias might have increased in severity since the May 2019 VA examination, which warrants a new examination to ascertain the current level of severity of bilateral inguinal hernias. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for VA examination to determine the current severity of his service-connected bilateral inguinal hernias. Then, forward the claims file and a copy of this remand to the examiner. The examiner should provide a full description of bilateral inguinal hernias and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should consider and discuss the Veteran's lay statements. The examiner should attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. In determining the severity of bilateral inguinal hernias, the examiner is advised to address the medical records and the Veteran's statements noted in the documents associated with the claims file with entries dated (i) 01/04/2021, titled "CAPRI," page numbers 71 and 86 that contain treatment record of September 2019 hernia repairs, page number 138 that contains treatment record of October 2018 hernia repairs, page number 3 and 21 that contain notation of soreness and pain in hernias; (ii) 01/04/2021, titled "Hearing Transcript," page number 10 to 21, which includes the Veteran's contentions regarding the severity of bilateral inguinal hernias. 3. Obtain a supplemental medical opinion on the nature and etiology of a back condition. Further in-person examination for a back condition is left to the discretion of the clinician providing the opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. After reviewing the claims file and copy of this remand, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's back condition had its onset during his period of active service, or related to an in-service injury, event, or disease, including the complaints of back pain noted during service and claimed physical activities performed by the Veteran as an artillery crewmember. In providing the above opinion regarding a back condition, the examiner is advised to address the in-service back pain, VA treatment records and the Veteran's contentions noted in the documents associated with the claims file with entries dated: (i) 10/28/1996, titled "STR Medical," page number 5 of 65 that contains notation of recurrent back pain in an August 1996 report of medical history, and page number 18 of 65 that contains notation of lower back pain in an April 1994 in-service treatment record; (ii) 01/04/2021, titled "CAPRI," page number 195 of 467, which includes the April 2018 VA treatment record with notation of complaints of back pain and diagnosis of small anterolateral tractions spurs throughout the lumbar spine and degenerative disc disease; (iii) 01/04/2021, titled "Hearing Transcript," pages 3 to 9, which include the Veteran's contentions regarding in-service physical activities and back pain. 4. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.