Citation Nr: 1031089 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 06-16 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for left leg radiculopathy. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a testicular disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nancy Snyder, Counsel INTRODUCTION The Veteran had active service from October 2003 to July 2004, with additional service in the National Guard. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issue of service connection for a right knee disorder and a testicular disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Left leg radiculopathy has not been shown. CONCLUSION OF LAW Left leg radiculopathy was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA), injury incurred or aggravated while performing inactive duty training (INACDUTRA), or acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. See 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Presumptive periods do not apply to periods of duty training. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Veteran contends that service connection is warranted for left leg radiculopathy. He has reported having pain which radiates down the left leg. See, e.g., March 2004 service treatment record; June 2009 VA examination record. After review of the file, the Board finds that service connection is not warranted because the evidence does not reflect the existence of left leg radiculopathy. Specifically, a September 2009 motor nerve conduction testing revealed no evidence of lower extremity radiculopathy and a normal nerve conduction study of the motor nerves. The Board acknowledges that the examiner who conducted the October 2004 VA general medicine examination diagnosed the Veteran with lumbar "radiculitis to the lower extremities." However, it is apparent that this diagnosis was based solely on the Veteran's history of radicular pain, rather than any testing or abnormal neurological findings. The objective the neurological findings have been consistently normal for the left lower extremity and the diagnosis has not been corroborated by the additional medical evidence. Thus, the Board finds that the reference to radiculitis in October 2004 is not supported by the objective evidence of record. Next, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that the Veteran is competent to report the existence of pain which radiates from the back down the left leg. He is not, however, competent to assess himself with radiculopathy solely on the basis of that pain. In this case, the evidence does not demonstrate the existence of radiculopathy. Thus, in the absence of proof of a current disability, the claim is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in September 2004 and August 2005 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2007, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In this case, VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded him examinations, and obtained a medical opinion as to the existence and etiology of the reported radiculopathy. All known and available records relevant to the issue on appeal have been obtained and associated with the claims file; and he has not contended otherwise. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for left leg radiculopathy is denied. REMAND With respect to the remaining issues on appeal, the Board finds that further development is needed. Right Knee. The Veteran contends that he has had right knee pain since basic training. A July 2009 VA examination diagnosed patellofemoral pain syndrome but opined that it was not due to service because there was no proof of treatment in the service records. However, this is not the case. In June 1997 (while in the National Guard), the Veteran had left knee and shin complaints. A September 2001 National Guard retention examination record reflects a history of knee pain but did not report which knee. In June 2004 (while on active duty), he reported knee pain, but again did not report which knee. Based on the Veteran's competent history of knee pain since basic training in 1997 and the evidence reflecting a current diagnosis of patellofemoral pain syndrome, an addendum opinion is needed to determine whether a chronic right knee disorder had its onset during service. Testicular Disorder. The evidence of record documents complaints of testicular pain, both during and after service. The in- service complaints are generally attributed to the Veteran's low back disorder. In November 2009, the Veteran underwent a VA examination regarding his complaints of a testicular disorder. At the time of the examination, no pathology was identified; however, the examiner noted an onset of a testicular disorder in 2007 (3 years after service). While the examiner opined that the disorder was not related to service, he failed to discuss the findings of a VA examination showing a cyst on the right testicle as early as October 2004 (which was within months of the Veteran's separation from service). Based on the finding of a testicular cyst in 2004, an addendum opinion is needed to address whether the in-service complaints were related to the 2004 findings, and whether the Veteran's current complaints are related to a possible cyst or to his service-connected low back disability. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the VA Medical Center in San Juan from November 2009 to the present. 2. Return the claims file to the VA examiner who conducted the July 2009 VA Joints examination (or, if unavailable, to another appropriate VA reviewer). The reviewer should also provide more detailed rationale for his opinion that patellofemoral pain syndrome did not onset in service, with discussion of the Veteran's history of right knee pain since basic training in 1997 and the history of knee pain in 2001, and complaints in 2004. The claims file must be made available to the examiner in conjunction with the examination. The rationale for any opinion expressed must be provided. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 3. Return the claims file to the VA examiner who conducted the June 2009 VA Genitourinary examination (or, if unavailable, to another appropriate VA reviewer). In an addendum, the reviewer should clarify whether the right testicle cyst shown in October 2004 had its onset in service. An explanation of why a right testicular cyst was shown in October 2004 but was not shown at the time of the June 2009 VA examination would be helpful to the Board. The claims file must be made available to the examiner in conjunction with the examination. The rationale for any opinion expressed must be provided. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 4. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs