Citation Nr: 0815101 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-13 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for left extra-testicular mass, claimed as a hernia. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Ernest Lee, Associate Counsel INTRODUCTION Veteran had active service from May 1979 to May 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 2006 by the Department of Veterans Affairs (VA) Waco, Texas Regional Office (RO). FINDING OF FACT The evidence of record does not show that the veteran's left extra-testicular mass, claimed as a hernia, is related to service. CONCLUSION OF LAW A left extra-testicular mass, claimed as a hernia, was not incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. 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). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disability to service must be medical unless it relates to a disability that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. To prevail on the issue of service connection on the merits, medical evidence must show (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In this regard, the Board can accept the veteran's statements on factual matters of which he has first hand knowledge. However, the Board cannot accept statements from the veteran or other individuals as lay persons which attempt to draw a medical conclusion because they are not qualified to do so. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to determine the credibility and probative value of all evidence submitted including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); See also Washington v. Nicholson, 19 Vet. App. 362, 269 (2005). This also includes weighing the absence of contemporary medical evidence against lay statements. The veteran's statements will be examined to determine whether the statements are competent lay evidence and whether the statements are deemed credible. Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (Court), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge. See also 38 C.F.R. § 3.159(a)(2). For the present case on appeal, the RO was unable to obtain the veteran's service medical records. The only available documents addressing the veteran's testicular condition are the veteran's own statements and VA treatment records. The RO discussed the absence of the service medical records in its February 2006 decision. The Board is mindful that, in a case such as this, where service medical records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). While it is unfortunate that the veteran's service medical records are unavailable, the appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened duty in mind. Furthermore, there is no presumption, either in favor of the veteran or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-218 (2005). The RO made several attempts to acquire the veteran's service medical records. The RO notified the veteran of their inability to locate his records on December 2005 and February 2006. The RO requested the veteran to submit other documents in lieu of the service medical records. The RO also attempted to contact the veteran in February 2006 by telephone. As the veteran's service medical records are unavailable the Board will examine the available post-service VA treatment records and the veteran's statements to determine if the current testicular condition is attributed to service. The Board acknowledges the existence of a present disability. The veteran stated on the August 2005 application for compensation benefits that he suffered from a hernia. A July 2005 VA examination report stated the veteran was diagnosed with a "left inguinal hernia." The veteran underwent surgery in March 2006 to remove a left testicular mass. The requirement of a present disability is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed...even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board finds that statements provided by the veteran in the September 2005 Statement in Support of Claims is competent lay evidence. The veteran provided the following: "after the service I note my testicle there were three nuts in my sack there [sic] was one small one a [sic] two normal one". The veteran's description is supported by the VA examiner's diagnosis from July 2005. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The veteran also claims to now experience pain when he attempts to pick something up as stated in the September 2005 Statement in Support of Claims. The veteran is capable of making such statements based on his own observations. See Layno v. Brown, 6 Vet. App. 465, 471 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the veteran's statements cannot be considered an opinion regarding a diagnosis or the etiology of the condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Also, the Board acknowledges the veteran's January 2006 statement regarding his self treatment for a condition he experienced while in service. No details were provided as to how the veteran treated himself. However, the Board finds inconsistencies with the veteran's statements. Regarding the initial onset of pain, two different dates were provided, May 1979 as disclosed in August 2005 compensation application and 1980 as disclosed in the April 2006 Appeal to Board of Veteran's Appeals (Form 9). Both statements contradict the veteran's September 2005 disclosure in the Statement in Support of Claim where he states to have experienced no pain while in service. Furthermore, the disclosure of no pain experienced while in service also conflicts with the January 2006 statement on self-treatment for an unspecified condition. The veteran does not provide a specific period of time after service as to when he began to notice the condition described in the September 2005 Statement in Support of Claim. The veteran left service in 1982 and the evidence showing the earliest treatment received for a testicular condition was in July 2005. Over 20 years have passed since separation from service before the veteran sought help. In the absence of a demonstration of continuity of symptomatology, the Board finds the veteran's condition is too remote from service to be reasonably related to service. See Maxon v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The VA treatment records from April 2004 to October 2005 do not contain a nexus opinion between the present testicular condition and a testicular condition from service. There is no reference to an etiological relationship. The post- service medical records related to a testicular condition do not link such condition to service. The Board does not find any statements provided by the veteran to a VA examiner attributing his current testicular condition to an event occurring in service. Indeed, the Board finds that the veteran's statements lack probative value due to inconsistencies. See Washington v. Nicholson, 19 Vet. App. 362, 269 (2005); See also Caluza v. Brown, 7 Vet. App.498 (1995), aff 'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board concludes that administering a VA medical examination and seeking an opinion by a VA examiner as required by 38 U.S.C.A. § 5203A(d) to determine whether the testicular condition is related to service is unnecessary. Even though the Board acknowledges the veteran's disability, the Board does not find the veteran's statements credible and the medical evidence fails to show a link between the disability and service. See 38 U.S.C.A. §§ 5103A(d)(2)(A), 5103A(d)(2)(B). The Board finds that the evidence of record already contains sufficient medical evidence for a decision to be rendered. See 38 U.S.C.A. § 5103A(d)(2)(C). Finally, in view of the elapsed time since discharge from service to post-service diagnosis, coupled with uncredible lay evidence, the Board finds that no reasonable possibility exists where such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2). In conclusion, the preponderance of the evidence of record is against a finding that the veteran's left extra-testicular mass, claimed as a hernia, occurred during was a result of service. When the preponderance of the evidence is against a claim, it must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine in adjudicating the claim for service connection. However, as the preponderance of the evidence weighs against the claim, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Duty to Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into four elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; (3) that VA will attempt to obtain; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). By the letter dated in October 2005 the veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. The Board is aware of the fact that the veteran's service records were unavailable for review. Letters dated December 2005 and February 2006 informed the veteran that the service medical records could not be obtained despite VA's efforts and asked the veteran to submit other documents in lieu of the service medical records that he may have in his possession. A February 2006 Report of Contact Form disclosed that the veteran was contacted via telephone inquiring about his service medical records. The veteran disclosed in a January 2006 hand written statement that he did not have a copy of his service medical records. A copy of an October 2005 e-mail and a January 2006 VA memorandum disclose the unsuccessful attempts to locate the veteran's service medical records. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied and VA has made all reasonable attempts to complete the record and afford the veteran the duty to assist in this case. 38 C.F.R. § 3.159(c). With respect to the Dingess requirements, in light of the Board's denial of the veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the Court's holding. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The veteran's relevant VA treatment records have been obtained. He has been provided VA medical examinations and treatments. There is no indication of any additional, relevant records that the RO failed to obtain. As discussed above, the Board finds that a VA examination and a nexus opinion to determine the etiology of the disability and service is not needed. The Board can review the appeal based on the evidence of record. The Board has found that the veteran's statements are not credible due to inconsistencies and the medical evidence does not contain disclosures possibly linking the disability to service. The Board is satisfied with the RO's efforts in assisting the veteran with the claim and no further assistance is necessary. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. ORDER Service connection for left extra-testicular mass, claimed as a hernia, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs