Citation Nr: 0942046	
Decision Date: 11/04/09    Archive Date: 11/09/09

DOCKET NO.  02-18 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for an abdominal hernia 
(claimed as a separated stomach).


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Esq.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Ishizawar, Associate Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from 
March 1953 to March 1956.  The case is before the Board of 
Veterans' Appeals (Board) on remand from the United States 
Court of Appeals for Veterans Claims (Court).  The case was 
originally before the Board on appeal from a November 2001 
rating decision of the Waco, Texas Department of Veterans 
Affairs (VA) Regional Office (RO) that, in pertinent part, 
denied service connection for an abdominal hernia (claimed as 
a separated stomach), low back disability, and bilateral knee 
disability.  In September 2003, a Travel Board hearing was 
held before a Veterans Law Judge (VLJ) (a transcript of the 
hearing is associated with the Veteran's claims file) who, in 
March 2004, remanded the case for additional development.  As 
that VLJ is no longer with the Board, in August 2007 the case 
was reassigned to the undersigned.  

In a decision issued in August 2007, the Board denied the 
Veteran's claims of service connection for an abdominal 
hernia, low back disability, and bilateral knee disability.  
The Veteran appealed that decision to the Court.  A March 
2009 Court memorandum and May 2009 order affirmed the Board's 
denial of service connection for a low back disability and 
bilateral knee disability, and vacated the Board's decision 
regarding the denial of service connection for an abdominal 
hernia and remanded the matter for readjudication consistent 
with the instructions outlined in the memorandum decision.

The appeal is REMANDED to the Waco RO.  VA will notify the 
appellant if any action on his part is required.


REMAND

The Veteran has in various statements, including in testimony 
at the September 2003 Travel Board hearing, contended that he 
was seen and treated for a stomach disorder in service.  He 
has also contended that he was a projectile loader for the 
120 mm anti-aircraft guns in service, that the projectiles 
weighed about 50 pounds, and that the oscillation of the gun 
carriage ruptured his stomach liner and caused other 
problems.  In support of these claims, he submitted lay 
statements from M.C.I., a fellow serviceman, and P.V., his 
brother.  M.C.I.'s statements served to corroborate the 
conditions in service, as described by the Veteran.  P.V. 
indicated that the Veteran had complained continuously since 
service of "an area on his chest below the breastbone that 
since he had it occasionally would cause him to regurgitate 
food."  

The Board notes that the National Personnel Records Center 
(NPRC) in St. Louis, Missouri has certified that the 
Veteran's service treatment records were destroyed in the 
1973 fire at that facility.  In such circumstances, VA has a 
well-established heightened duty to assist.  O'Hare v. 
Derwinski, 1 Vet. App. 365 (1991).

The evidence of record also includes an April 2001 letter in 
which the Veteran states that in the late 1960s or early 
1970s, his private treating physician, Dr. Hanna, told him 
that his stomach was "separated."  The Veteran has 
indicated that Dr. Hanna is deceased and his medical records 
are unavailable.  [Notably, the Court has held that a lay 
person's account of what a physician purportedly said is too 
attenuated and inherently unreliable to constitute medical 
evidence.  Robinette v. Brown, 8 Vet. App. 69, 77 (1995).]

February 1988 to August 1988 and October 1989 to November 
1990 VA outpatient treatment records, and a November 1988 VA 
examination (for the purpose of nonservice-connected pension 
benefits) are silent for complaints, findings, treatment or 
diagnosis of an abdominal disability.

A December 1992 Social Security Administration (SSA) decision 
reflects that the Veteran was found disabled since at least 
August 1991 by SSA as a result of "severe degenerative disc 
disease of the lumbar spine, arthritis of the right knee, a 
large abdominal hernia and marginally controlled 
hypertension."  The decision discussed the findings of an 
April 1992 consultative evaluation in which it was noted that 
the Veteran's stomach problems, which caused difficulty 
swallowing food, had been diagnosed as early as 1972.  On 
examination, he had a large abdominal hernia.  The Veteran 
has advised that his SSA records are unavailable.

On June 1993 VA examination (also for nonservice-connected 
pension benefits purposes), the Veteran reported that in 1973 
he was told that he had an abdominal hernia.  He complained 
that if he lifted anything heavy, he had an upper abdominal 
bulge and regurgitated recently eaten food.  Physical 
examination revealed a slight degree of diastasis recti with 
abdominal straining.  It was the examiner's impression that a 
stomach disability was not evident by history or physical 
examination, and that the Veteran did have diastasis recti.  
[Diastatis recti abdominis is defined as the "separation of 
the rectus muscles of the abdominal wall."  DORLAND'S 
ILLUSTRATED MEDICAL DICTIONARY 518 (31st ed. 2007).]

VA outpatient treatment records from October 1999 to May 2001 
show that in May 2001, the Veteran's abdomen was soft; the 
hernial orifices were normal; there was no organomegaly; and 
bowel sounds were present and normal.  

The Veteran has not been afforded a VA examination for an 
abdominal disability.  Under 38 C.F.R. § 3.159(c)(4), an 
examination or opinion is necessary if the evidence of 
record: (A) contains competent evidence that the claimant has 
a current disability, or persistent or recurrent symptoms of 
disability; and (B) establishes that the veteran suffered an 
event, injury or disease in service; (C) indicates that the 
claimed disability or symptoms may be associated with the 
established event, injury, or disease in service, but (D) 
does not contain sufficient medical evidence for the 
Secretary to make a decision on the claim.  The United States 
Court of Appeals for Veterans Claims (Court) has held that 
credible evidence of continuity of symptomatology such as 
pain or other symptoms capable of lay observation is enough 
to satisfy the "low threshold" requirement that a 
disability "may be associated" with service.  McLendon v. 
Nicholson, 20 Vet. App. 79, 83 (2006).  

As outlined above, the record shows that the Veteran's in-
service duties included lifting heavy objects, and that he 
has, at various times since service, been given diagnoses of 
an abdominal hernia and diastasis recti.  He has also 
complained of continuous stomach problems since service, such 
as regurgitation of recently eaten food when lifting heavy 
objects.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) 
(finding that a veteran may be competent to testify as to 
symptoms he experiences).  
Based upon the foregoing, and in accordance with the March 
2009 Court memorandum, the Board finds that an examination to 
secure a medical advisory opinion is indicated.

Additionally, during the pendency of this appeal, on March 3, 
2006, the Court issued a decision in the consolidated appeal 
of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 
(2006), which held that the VCAA notice requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim, including the 
degree of disability and the effective date of an award.  The 
Veteran was not notified of the criteria for establishing 
disability ratings or effective dates of awards.  Since the 
case is being remanded anyway, the RO will also have the 
opportunity to correct such notice deficiency.

Accordingly, the case is REMANDED for the following:

1. 	The RO should provide the Veteran 
notice regarding the rating of abdominal 
(including hernia) disability and 
effective dates of awards as outlined by 
the Court in Dingess/Hartman v. Nicholson, 
19 Vet. App. 473, 490-91 (2006).  The 
appellant and his representative should 
have opportunity to respond.  

2. 	The RO should ask the Veteran to 
identify the provider(s) of any additional 
postservice treatment or evaluation he has 
received for his abdominal disability, to 
include an abdominal hernia/separated 
stomach, records of which are not already 
associated with the claims file, and to 
provide any releases necessary for VA to 
secure records of such treatment or 
evaluation.  The RO should obtain complete 
clinical records of all such treatment and 
evaluation from the sources identified by 
the Veteran.  In conjunction with this 
development, the Veteran should be advised 
of the provisions of 38 C.F.R. § 3.158(a), 
and that it is his responsibility to 
ensure that the records are received if 
the RO is unable to obtain them.

3. The RO should then arrange for the 
Veteran to be examined by an appropriate 
physician to determine the nature and 
likely etiology of his abdominal 
disability, to include abdominal hernia 
and/or diastasis recti.  The Veteran's 
claims file, to include this remand, must 
be reviewed by the examiner in conjunction 
with the examination.  Upon 
examination/interview of the Veteran, and 
review of pertinent medical history, the 
examiner should provide opinions 
responding to the following:

(a) What is (are) the diagnosis(es) for 
the Veteran's current abdominal 
disability?  

(b) For each abdominal disability 
diagnosed, please provide an opinion as to 
whether such is, at least as likely as not 
(50 percent or better probability), 
related to the Veteran's service, to 
include the heavy lifting duties noted 
therein.

The examiner must explain the rationale 
for all opinions given.

4. 	The RO should then re-adjudicate 
the claim.  If it remains denied, the RO 
should issue an appropriate supplemental 
statement of the case and afford the 
Veteran and his attorney the opportunity 
to respond.  The case should then be 
returned to the Board, if in order, for 
further review.

The purpose of this remand is to implement the mandates of 
the Court, and to ensure that all necessary development is 
completed.  The appellant has the right to submit additional 
evidence and argument on the matter the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim 
must be afforded expeditious treatment.  The law requires 
that all claims that are remanded by the Board for additional 
development or other appropriate action must be handled in an 
expeditious manner.


_________________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  This remand is in the 
nature of a preliminary order and does not constitute a 
decision of the Board on the merits of your appeal.  
38 C.F.R. § 20.1100(b) (2009).


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