07-27 934
07-27 934
Board of Vet. App.Jan 31, 2017Background
- Veteran served active duty 1974–1977 and 2003–2004; also served in Army National Guard 1978–2007. Veteran died May 2011; surviving spouse substituted as appellant.
- Veteran had a right inguinal hernia repaired in September 1999 while a civilian National Guard employee; records show a permanent profile noting a right hernia in November 2002.
- Veteran deployed to Iraq in February 2003; contemporaneous service records document a left inguinal hernia and subsequent left hernia repair, but do not show new or worsening right-hernia symptoms during service.
- Veteran and appellant provided lay statements asserting onset or aggravation of the right hernia in service (claims of onset in 1988 and aggravation in 2003), which conflicted with contemporaneous medical records.
- Board found no increase in disability of the right hernia during active service and, alternatively, clear-and-unmistakable evidence that the right hernia pre-existed and was not aggravated by the 2003 service.
- The Board denied service connection for residuals of the post-operative right inguinal hernia; claims for TDIU and housebound SMC prior to May 19, 2011 were remanded for a videoconference hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for right inguinal hernia | Right hernia was incurred or aggravated by active service (onset during drill or aggravated in Iraq) | Medical/service records show prior 1999 repair and no in-service worsening of right hernia; left hernia occurred in 2003 | Denied — no service incurrence or aggravation of right hernia |
| TDIU (remanded) | Appellant requests hearing to present facts and testimony supporting unemployability due to service-connected disabilities | VA to develop and adjudicate after hearing | Remanded for videoconference hearing |
| Housebound SMC prior to May 19, 2011 (remanded) | Appellant requests hearing and evidence for entitlement | VA to develop and adjudicate after hearing | Remanded for videoconference hearing |
| Credibility/weight of lay statements vs. contemporaneous records | Veteran/appellant testimony asserts in-service onset/aggravation | Contemporaneous service and private records contradict lay assertions; Board assigns less probative weight to inconsistent lay statements | Held that contemporaneous records control; lay reports contradicted and insufficient to establish service connection |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (VA duty-to-assist and record development principles)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (elements required to establish service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competency of lay evidence)
- Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (presumption of soundness and rebuttal by clear and unmistakable evidence)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App. 1990) (preponderance of evidence standard and benefits of the doubt)
- Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002) (flare-ups alone do not establish aggravation for non-combat veterans)