HERNIA HIATAL

MELANIE J. MANN · 2026 · Case ID: A26026216

MIXED

Summary

The veteran, who served in the U.S. Army from November 28, 1978, to February 1, 1979, appeals the denial of service connection for a hernia and the remand of a claim for left varicocele. The Board found that new and relevant evidence, specifically the veteran's testimony about a fall during Basic Training where 12 other soldiers fell on him, warranted readjudication of the hernia claim. However, the Board denied service connection for the hernia, noting the lack of a current diagnosis and the veteran's inconsistent statements regarding the timing of the condition and its relation to service. The Board also found the evidence insufficient to determine the etiology of the left varicocele, citing inadequate medical opinions that failed to properly address pre-existing conditions or aggravation. The July 2020 VA examiner opined the varicocele was less likely than not related to service, but this opinion was deemed inadequate for failing to quantify aggravation or clearly establish pre-existing conditions. The case is remanded for a new medical opinion to clarify the etiology of the left varicocele, specifically addressing pre-service existence, aggravation by in-service events, or a direct service connection.

Rationale

No current hernia diagnosis; Veteran's lay statements insufficient; Evidence persuasively against claim

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200812-103104

Full Decision Text

Citation Nr: A26026216
Decision Date: 03/24/26 Archive Date: 03/24/26

DOCKET NO. 200812-103104
DATE: March 24, 2026

ORDER

New and relevant evidence having been received, readjudication of the claim of entitlement to service connection for hernia is warranted.

Entitlement to service connection for hernia is denied.

REMANDED

Entitlement to service connection for left hemiscrotum varicocele (hereinafter, "left varicocele") is remanded.

FINDINGS OF FACT

1. Evidence added to the record since the issuance of the July 2020 rating decision that denied service connection for hernia was not previously part of the actual record before the Agency of Original Jurisdiction (AOJ) and tends to prove or disprove a matter at issue regarding such claim.

2. At no time during the pendency of the claim does the Veteran have a current hernia diagnosis, and the record does not contain a recent diagnosis of such disability prior to his filing of a claim.

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim of entitlement to service connection for hernia have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501(a)(1).

2. The criteria for service connection for hernia have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from November 28, 1978 to February 1, 1979. For his service, he was awarded the M-16 Rifle Expert Badge. The Board of Veterans' Appeals (Board) is grateful for the Veteran's service to our Nation.

This matter comes before the Board on appeal from a supplemental claim rating decision issued in July 2020 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA).

In August 2020, the Veteran filed a timely Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and elected the hearing docket. A Board hearing was held on April 10, 2024. Therefore, the Board may only consider the evidence of record at the time of the July 2020 AOJ rating decision, as well as any evidence submitted by the Veteran or his representative at the Board hearing or within 90 days following the hearing. See 38 C.F.R. § 20.302. If evidence was submitted either (1) during the period after the AOJ issued the July 2020 rating decision and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. See 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

However, because the Board is remanding the claim of entitlement to service connection for left varicocele, any evidence the Board could not consider will be considered by the AOJ in the readjudication of such claim. See 38 C.F.R. § 3.103(c)(2)(ii).

1. Whether new and relevant evidence has been received to readjudicate the claim of entitlement to service connection for hernia.

In the July 2020 rating decision, the AOJ stated the following: "The evidence from Memphis and Little Rock VAMCs identified in connection with the current claim does not constitute relevant evidence because it does not prove or disprove a matter at issue within your claim."

For VA to readjudicate a previously denied claim, there must be "new and relevant" evidence. 38 C.F.R. § 3.2501. The AMA defines "new evidence" as "evidence not previously part of the actual record before agency adjudicators" and "relevant evidence" as "information that tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501(a)(1). If new and relevant evidence is presented or secured, the Secretary must readjudicate the claim, taking into consideration all evidence of record. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156.

The Board notes that, at the April 2024 Board hearing, the Veteran provided the following evidence (during an evidentiary window), in the form of testimony:

We [were] having a war game that
evidence not previously part of the actual record before agency adjudicators" and "relevant evidence" as "information that tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501(a)(1). If new and relevant evidence is presented or secured, the Secretary must readjudicate the claim, taking into consideration all evidence of record. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156.

The Board notes that, at the April 2024 Board hearing, the Veteran provided the following evidence (during an evidentiary window), in the form of testimony:

We [were] having a war game that was called the hell week and I was pretty much, like, a squad leader. . . we started losing the battle and I told the guys to follow me. And they did. But of course, it was 3:00 or 4:00 in the morning and we went off of a cliff and I was the first one to fall. And about 12 others fell on top of me. That's where the hernia started.

Because such evidence (regarding 12 servicemembers falling on top of the Veteran) was not part of the record before the AOJ at the time of the July 2020 rating decision and addresses one of the bases of the prior denial (i.e., the lack of an in-service injury, disease, or event, see May 2018 Statement of the Case), such evidence tends to prove or disprove a matter at issue regarding the Veteran's claim.

Considering the above, the Board finds that new and relevant evidence has been received and that readjudication of the Veteran's claim for service connection for hernia is warranted.

2. Entitlement to service connection for hernia.

The Veteran contends that he has a hernia due to active duty service.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102.

In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of such claim.

Although the Veteran's medical treatment records indicate that he underwent a left inguinal hernia repair in 1989 (see, e.g., January 2004, April 2011, and March 2013 VA treatment records), there is nothing in the record to suggest that the Veteran has a current hernia diagnosis.

Where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, service connection for hernia is not warranted.

Moreover, even assuming, arguendo, that there is evidence suggestive of a current hernia diagnosis, the Veteran's lay statements alone are insufficient to meet the standard to remand for a VA medical examination and/or opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Specifically, the first time that the Veteran mentioned a hernia as being related to his military service was on his April 2013 informal claim (i.e., 34 years after his separation from service and 24 years after his hernia repair). Furthermore, the Veteran's STRs are silent for any hernia related symptoms during service. On the other hand, his STRs reflect that he did seek medical
assuming, arguendo, that there is evidence suggestive of a current hernia diagnosis, the Veteran's lay statements alone are insufficient to meet the standard to remand for a VA medical examination and/or opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Specifically, the first time that the Veteran mentioned a hernia as being related to his military service was on his April 2013 informal claim (i.e., 34 years after his separation from service and 24 years after his hernia repair). Furthermore, the Veteran's STRs are silent for any hernia related symptoms during service. On the other hand, his STRs reflect that he did seek medical attention for other ailments, to include painful left testicle.

In reaching the above conclusion, the Board has considered the doctrine of reasonable doubt. 38 U.S.C. § 5107. However, as the most probative evidence of record is persuasively against the claim of entitlement to service connection for hernia, the Board finds that the doctrine is not for application, and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

Nonetheless, if the Veteran would like VA to consider any evidence that was not available for review in the current appeal, the Veteran may file a Supplemental Claim and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

REASONS FOR REMAND

1. Entitlement to service connection for left varicocele.

The Veteran contends that his left varicocele is due to active duty service.

For AMA cases, a remand is warranted only for correction of pre-decisional duty to assist errors or to satisfy a statutory or regulatory duty-if that would aid in substantiating the claim. 38 C.F.R. § 20.802. In this case, a remand is warranted to correct a pre-decisional duty to assist error.

Regarding a current disability, the July 2020 VA examiner noted a diagnosis of varicocele, and the AOJ favorably conceded a current left varicocele diagnosis in its July 2020 rating decision.

Regarding an in-service injury, disease, or event, at the April 2024 Board hearing, the Veteran testified to the events described above, indicating that he had injured his left testicle in an exercise during Basic Training. In its July 2020 rating decision, the AOJ favorably conceded that the Veteran was treated for left varicocele during service.

A January 4, 1979 STR notes that the Veteran complained of a painful left testicle, was diagnosed with left epididymitis, was treated with tetracycline 250 milligrams (mg), scrotal support, and bed rest, and was referred to the urology department.

A January 22, 1979 STR notes that the Veteran was seen for a follow-up appointment for swollen testicle, after being treated in the emergency room two weeks prior. Examination of the Veteran revealed tenderness to touch and an abnormal mass between the testicles. The Veteran was to be referred to urology. The same STR notes an assessment of epididymitis. The second part of the same STR notes that the Veteran reported that he had experienced swelling in his left testicle as of five to six years, which had gotten progressively larger. The STR also notes that the Veteran stated that he had been handled by an older male when he was a young child and that his left testicle had been squeezed to the point of pain. (But note, the Veteran testified at the April 2024 Board hearing that no such events ever occurred, and VA treatment records consistently note that the Veteran never experienced any form of abuse as a child). The clinician found that the Veteran's left hemiscrotum was extremely enlarged and noted "testis is tender to exam. [Right] testis atrophied."

A separate January 22, 1979 STR (Consultation Request) notes that the Veteran complained of a problem with his testicles as of five to six years. The same STR notes that the Veteran stated that his left testicle had been getting progressively larger-denying dysuria, frequency, or penile discharge but endorsing urinary frequency. The clinician noted that the Veteran's left hemiscrotum was greatly enlarged but not distinguish
such events ever occurred, and VA treatment records consistently note that the Veteran never experienced any form of abuse as a child). The clinician found that the Veteran's left hemiscrotum was extremely enlarged and noted "testis is tender to exam. [Right] testis atrophied."

A separate January 22, 1979 STR (Consultation Request) notes that the Veteran complained of a problem with his testicles as of five to six years. The same STR notes that the Veteran stated that his left testicle had been getting progressively larger-denying dysuria, frequency, or penile discharge but endorsing urinary frequency. The clinician noted that the Veteran's left hemiscrotum was greatly enlarged but not distinguishable and that the right testicle was atrophied. The second part of the same STR (Consultation Report) notes that the Veteran had experienced left hemiscrotum pain for years, which had become "worse in last several weeks," and a diagnosis of varicocele.

A January 25, 1979 STR notes that the Veteran had a past history of pain and swelling in the left hemiscrotum for years which had gotten worse in the past several weeks. Physical examination revealed large left varicocele. The Veteran was diagnosed with varicocele, left hemiscrotum, large, noted to be "EPTS" (i.e., existing prior to service).

In his January 25, 1979 Statement of Change of Medical Status (ATZJ-MD Form 30), the Veteran indicated that he understood that his "Swollen Left Testicle" was an EPTS condition.

In his February 1, 1979 Statement of Medical Condition (DA Form 3082), the Veteran indicated that his medical condition had changed since his last separation examination (of January 25, 1979), stating the following: "My testicle has been injured [carrying] the back pack."

On his February 1979 Application for Compensation (VA Form 21-526), the Veteran stated that he had been injured during Basic Training-sustaining "Testal injuries."

An October 2015 VA treatment record notes that the Veteran responded to the question of whether he had experienced traumatic events while in the military as follows: "No more than my injury, I busted my left testicle."

In his January 2020 Statement in Support of Claim (VA Form 21-4138) the Veteran wrote the following:

During February 1979, my unit was on a night training exercise during my Basic training. We were playing war games. We [were] given an order to run. As we all ran and [tripped] over a tree trunk as a result we fell over a cliff downhill, over 10-15 soldiers came right behind rolling down the hill. . . My testicles [were] swollen and injured in the fall. To this date I was unable to have any children due to rendering me sterile. I am now considered to be infertile.

Regarding a nexus between an in-service injury, disease, or event and the Veteran's current left varicocele, the Board turns to the evidence of record.

An April 2013 VA treatment record notes that the Veteran had a daughter who was 37 years old (i.e., born in either 1975 or 1976 and therefore conceived prior to the Veteran's entrance into active duty).

A December 2013 VA examination report for male reproductive system conditions notes that the Veteran reported that he had increasing swelling of left hemiscrotum after sustaining a fall during Basic Training. The Veteran reported that he had noted immediate swelling after the injury, which progressed over time, and that he had been unable to conceive a child for the ten years following separation from service. The Veteran also reported that he had undergone a fertility evaluation, which found him to have low sperm counts, and that he had subsequently undergone a left varicocelectomy in 1989-but was still unable conceive a child. The examiner stated that varicocele was most likely the reason for the Veteran's infertility and that he had most likely had undiagnosed varicocele prior to entering into military service. However, the examiner could not state whether a fall-related injury during service had aggravated the varicocele.

The July 2020 VA examiner opined that the Veteran's left varicocele was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner's rationale was that his review of records indicated that the Veteran's left varicocele condition had existed prior to service-based on statements of examining physicians in STRs, statements attributed to the Veteran in STRs, and Medical Board proceedings of January 1979. The examiner acknowledged that the Veteran's entrance examination showed a normal genitourinary examination, with no mention of scrotal abnormalities. Additionally, the examiner noted that, during a July 2020 phone interview with the Veteran, the Veteran stated that he did not have any recollection of a scrotal problem prior to service or any recollection of telling examiners in service that he had experienced such problem prior to service. The examiner concluded that, considering the available evidence of record and the Veteran's statements during the July 2020 phone interview (if giving equal credibility to each), the evidence was not in equipoise.

Upon review, the Board finds the medical evidence of record-to specifically include the December 2013 and July 2020 VA examiners' opinions-inadequate for the purpose of determining entitlement to service connection. Specifically, the examiners failed to use the correct legal standard in discussing the etiology of the Veteran's left varicocele. C.f. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). That is, the examiners failed to determine whether such disability clearly and unmistakably existed prior to the Veteran's service and, if so, whether such was aggravated (i.e., underwent a chronic worsening beyond its natural progression) therein. Although both examiners suggested that there was evidence of a left testicle condition pre-existing service, neither examiner determined if such condition clearly and unmistakably pre-existed service or quantified any aggravation beyond the baseline symptomatology.

In light of the above, the Board finds that the AOJ failed to obtain an adequate medical opinion, which constitutes a pre-decisional duty to assist error. Thus, a remand is warranted to correct such error by obtaining an appropriate medical opinion to properly determine the etiology of the Veteran's current left varicocele disability.

The matter is REMANDED for the following action:

Forward the complete record, to include a copy of this Remand, to an appropriate clinician for an opinion addressing the etiology of the Veteran's current left varicocele. The need for examination of the Veteran is left to the discretion of the clinician selected to write the opinion. After reviewing the record, the clinician should provide an opinion as to the following:

(a.) Is it clear and unmistakable that a left testicle condition existed prior to the Veteran's entry into active duty? In this regard, the clinician should consider the Veteran's STRs, which note that the Veteran reported experiencing left testicle pain and swelling for five to six years prior to service, which had gotten worse in the prior several weeks.

(b.) If it is clear and unmistakable that a left testicle condition pre-existed service, was such pre-existing condition aggravated by the Veteran's active duty service, to include his reported injury from carrying his backpack (as reported on his February 1979 Statement of Medical Condition) or his reported fall from a cliff-wherein 12 other servicemembers fell on top of him-during Basic Training (as reported at the April 2024 Board hearing)? In this regard, the clinician should also consider that the Veteran has a daughter who was born prior to his entering into active duty in November 1978 and that he was unable to conceive a child at any time after his separation from service in February 1979 (including after undergoing a left varicocelectomy in 1989). For any aggravation found, the clinician should state, to the best of his or her ability, the baseline symptomatology and the amount-quantified if possible-of aggravation beyond the baseline symptomatology, by such aggravation.

(c.) If a left testicle condition did not clearly and unmistakably pre-exist service, is it at least as likely as not that the Veteran's current left varicocele had its onset in, or is otherwise related to, his military service, to include his reported injuries from carrying his backpack and falling off of a cliff-wherein 12 other servicemembers fell on top of him-during Basic Training?

In providing the opinions requested above, the clinician must address the lay statements provided by the Veteran regarding
aggravation found, the clinician should state, to the best of his or her ability, the baseline symptomatology and the amount-quantified if possible-of aggravation beyond the baseline symptomatology, by such aggravation.

In providing the opinions requested above, the clinician must address the lay statements provided by the Veteran regarding the onset and progression of his pre-service, in-service, and post-service symptoms.

A rationale for any opinion offered should be provided.

Melanie J. Mann

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Dumas, Rebecca H.

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.

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