Citation Nr: 0005043 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 97-03 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bilateral hernia repair. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The appellant had active service from February 1991 to July 1991. He also served in the National Guard prior to his period of active service. This matter comes before the Board of Veterans' Appeals (the Board) on appeal as a result of a rating decision in February 1996 by the Department of Veterans Affairs (VA) regional office (RO) in Jackson, Mississippi. This case was remanded by the Board in December 1997 for further development. Subsequently, the RO awarded service- connection for a psychiatric disorder and continued the denial of service-connection for a bilateral hernia repair. Thereafter, the case was returned to the Board for appellate consideration on the issue of service-connection for a bilateral hernia repair . The veteran testified at a hearing at the RO in August 1996. A transcript of that hearing is the claims folder. FINDINGS OF FACT There is no competent medical evidence of a bilateral hernia problem in service or any competent medical evidence linking the current a bilateral hernia repair to service. CONCLUSION OF LAW The claim for service connection for a bilateral hernia repair is not well grounded, and there is no statutory duty to assist the appellant in developing facts pertinent to these claims. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A clinical record from Madigan Army Medical Center at Tacoma, Washington, disclosed that the veteran was hospitalized from June 18 to June 25, 1991, several disabilities were diagnosed at discharge. There was no mention of any hernia problem. The veteran was hospitalized at Methodist Hospital in January 1992. He was admitted with a several day history of abdominal pain, vomiting, and diarrhea. During hospitalization, an incarceration of a left inguinal hernia was noted and he also had a right inguinal hernia. Both inguinal hernias were repaired. The pertinent final diagnosis was bilateral inguinal hernia. The veteran underwent a VA alimentary appendages examination in October 1995. He claimed that he had residuals of a double inguinal hernia which was repaired two years ago at Methodist Hospital. The examination revealed well healed surgical scars with no recurrence. The examiner believed that he had optimal surgical results. The veteran testified at a hearing at the RO in August 1996. He stated that he had had no hernia problems prior to his active duty in 1991. He maintained that he developed the hernias as a result of physical training during active duty and that he was hospitalized while at Fort Lewis, Washington. He claimed that he saw a physician two months after discharge from service and surgery was performed at Methodist Hospital. In April 1998, the veteran reported in a statement that that he was treated for bilateral hernias at Madigan Army Hospital in the summer of 1992. In April 1998, the RO requested treatment records of the veteran at Madigan Army Hospital from June 1991. The response from Madigan Army Hospital indicated there were no records of the veteran on file. In January 1999, the National Personnel Records Center reported that the veteran had no active or inactive duty for training after he was released from active duty in July 1991. Legal Analysis Entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 101(16), 1110, 1113 (West 1991). In making a claim for service connection for a disorder, the claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has defined the term "well-grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has further noted that "[a]lthough the claim need not be conclusive, the statute provides that it must be accompanied by evidence." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); 38 U.S.C.A. § 5107(a) (West 1991). Moreover, the Court has stated that "[t]he quality and quantity of the evidence required to meet this statutory burden . . . will depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Where the issue in a case is factual, competent lay evidence may suffice; however, "where the determination involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Id. at 93. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). A claim for service connection requires three elements to be well-grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Truthfulness of the evidence is presumed in determining whether a claim is well-grounded. Id. at 504. When a disorder had its onset is a medical question involving medical evidence for its resolution, and therefore "competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required" to establish a well-grounded claim for service connection on a direct basis. Grottveit, 5 Vet. App. at 93. The veteran has contended that he developed bilateral hernia as a result of physical training during active duty in 1991 and was treated for this disorder at Madigan Army hospital. There is a record of hospitalization at this facility during June 1991. However, there is no indication of any hernia problems during this admission. Further, records of his bilateral hernia repair in January 1992 do not reflect a medical history or other indication of inguinal hernia during active service in 1991. In addition, there is no competent medical evidence linking the bilateral hernia condition to service. Therefore, because of the absence of evidence of incurrence or aggravation of any hernia condition in service; and competent (medical) evidence of a nexus between the current disability and service, this claim is not well grounded. In Epps v. Brown, 9 Vet. App. 341 (1996), the Court stressed that Robinette v. Brown, 8 Vet. App. 69 (1995), held that 38 U.S.C.A. § 5103(a) imposes an obligation upon the Secretary to notify an individual of what is necessary to complete the application in the limited circumstances where there is an incomplete application which references other known and existing evidence. The Court found in Epps, however, that the appellant's application was not incomplete and the VA was not on notice of the existence of any evidence which would have made the claim plausible. In this case, the appellant has claimed that he was treated for a bilateral hernia disorder in 1992 and Madigan Army hospital, and the RO attempted to obtain these records. However, Madigan Army hospital reported there were no records disclosing such treatment. The veteran has not put the VA on notice of the existence of any additional evidence pertaining to the which would have made this claim plausible. ORDER The claim for a bilateral hernia repair is not well grounded and is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals