Citation Nr: 0810291 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-06 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a genitourinary disorder, to include bilateral epididymo-orchitis with atrophy of the testes. 2. Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from February 1975 to March 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of this claim was transferred to the RO in Waco, Texas. FINDINGS OF FACT 1. A chronic genitourinary disorder was not manifested in service, and objective medical evidence does not establish that the currently diagnosed genitourinary disorder is etiologically related to active service. 2. A seizure disorder was not manifested in service or within one year of service discharge, and objective medical evidence does not establish that the currently diagnosed seizure disorder is etiologically related to active service. CONCLUSIONS OF LAW 1. A chronic genitourinary disorder was not incurred in the veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2007). 2. A seizure disorder was not incurred in or aggravated by the veteran's active service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the veteran received notification prior to the initial unfavorable agency decision in July 2004. The RO's March and April 2004 notice letters advised the veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claims. He was specifically told that it was his responsibility to support the claims with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. The Board notes that the veteran was not provided notice regarding the evidence and information necessary to establish a disability rating and effective date in accordance with Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). However, the Board has concluded that the preponderance of the evidence is against the veteran's claims. Therefore, any questions as to the appropriate disability rating or effective date to be assigned have been rendered moot, and the absence of notice regarding these elements should not prevent a Board decision. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records are associated with claims file. Post-service VA treatment records and reports as well as private records and reports from Parkland Health & Hospital System and Baylor University Medical Center have also been obtained. The appellant has not identified any additional medical evidence that should be obtained. As such, VA's duty to further assist the veteran in locating additional records has been satisfied. The veteran was afforded a VA genitourinary examination in January 2006, and a VA opinion was obtained in March 2006. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). A VA examination was not provided in conjunction with the veteran's seizure disorder claim, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4) (2007). VA has a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is nothing in the record, other than the veteran's own lay statements, that his currently diagnosed seizure disorder is etiologically related to his active service. As he is not competent to provide a competent etiological opinion, the record is silent for a nexus between the veteran's current disability and his active service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, the veteran has not satisfied all the elements of McLendon and VA is not required to provide him with a VA examination in conjunction with his claim. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic disabilities, including epilepsies, are presumed to have been incurred in service if manifest to a degree of 10 percent within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Genitourinary Disorder The veteran maintains that his current genitourinary disorder is the direct result of his active service. Essentially, he argues that he was hospitalized in service for swollen testicles after lifting a battery box and has been suffering from a genitourinary condition since. While the evidence of record reveals that the veteran is currently diagnosed with a genitourinary disorder, including atrophic testicles and chronic epididymitis, the competent, probative evidence of record does not etiologically link the veteran's current disability to his service or any injury or disorder incurred therein. In this regard, the Board observes that service medical records note two incidents in which the veteran sought treatment for a genitourinary condition. In November 1975, the veteran complained of painful, swollen testicles. However, no diagnosis of any disorder was provided at that time. In addition, service medical records dated June 1977 indicate the veteran was then diagnosed with acute epididymitis associated with physical activity. However, this condition was resolved with treatment and there is no medical evidence of a chronic, ongoing genitourinary disorder during service. In fact, a December 1977 Report of Medical Examination indicates a normal genitourinary system upon separation from active service. As such, the Board finds that there is no competent medical evidence showing the veteran suffered from a chronic genitourinary condition during active service. The evidence of record also indicates that there was no chronicity of symptomatology in the present case. In this regard, the medical evidence of record indicates the veteran did not seek treatment for a genitourinary condition until December 1999, at which time he complained of testicular pain and an ultrasound indicated he suffers from atrophic testicles and borderline left varicocele. The Board notes that this was over twenty years since his separation from active service. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). In sum, the Board finds that there is no evidence of a chronic genitourinary disorder in service, nor is there evidence of chronicity of symptomatology since service discharge. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the veteran's current genitourinary disorder and his active service. The preponderance of the evidence is against this aspect of the veteran's claim. In this regard, the Board observes a January 2006 VA genitourinary examination report which notes that, even though the examiner was unable to review the veteran's service medical records, it is unlikely that the veteran's current genitourinary disorder is related to service, due to the length of time between his separation from service and the onset of a chronic disorder. In addition, a March 2006 VA medical opinion finds that, after reviewing the veteran's claims folder, "it is less likely than not that the epididymal architis is related to military service." Again, the March 2006 VA examiner stated the length of time between the veteran's separation from service and the onset of present complaints. The veteran has produced no competent evidence or medical opinion in support of his claim that his present genitourinary disorder is the result of his active service. The Board acknowledges that the veteran himself has claimed his currently diagnosed genitourinary disorder arises from his active service. However, as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Seizure Disorder The veteran also maintains that his currently diagnosed seizure disorder is the direct result of his active service. While the evidence reveals that the veteran currently suffers from a chronic seizure disorder, the competent, probative evidence of record does not etiologically link the veteran's current disability to his service or any incident or disorder incurred therein. In this regard, a January 1978 Report of Medical History, completed in conjunction with the veteran's release from active duty, reports no episode of "epilepsy or fits." In addition, a December 1977 Report of Medical Examination indicates the veteran's neurologic evaluation to be normal. There is no competent medical evidence included in the record showing the veteran suffered from epilepsy or a seizure disorder during service or within one year of service discharge. Therefore, service connection may not be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). Medical evidence of record indicates the veteran was not diagnosed with a seizure disorder until the year 2000, over 20 years post service. There is no competent medical evidence of record to indicate the veteran had received treatment for seizures prior to this time. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). In sum, the Board finds that there is no evidence of a seizure disorder in service or within one year of service discharge. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the veteran's current seizure disorder and his active service. The preponderance of the evidence is against this aspect of the veteran's claim. The veteran has produced no competent evidence or medical opinion in support of his claim that his present seizure disorder is the result of his active service. The Board acknowledges that the veteran himself has claimed his currently diagnosed seizure disorder arises from his active service. However, as noted above, as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. See Espiritu, supra. Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. See Lathan, supra. ORDER Service connection for a genitourinary disorder is denied. Service connection for a seizure disorder is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs