Citation Nr: 1118656	
Decision Date: 05/16/11    Archive Date: 05/26/11

DOCKET NO.  09-11 013A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for a scrotal disability.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1967 to December 1970, including service in the Republic of Vietnam.  He received the Army Commendation Medal.
This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in New York, New York.  In that decision, the RO denied entitlement to service connection for tumors of the scrotum.

The Veteran testified before the undersigned at a January 2011 hearing at the RO (Travel Board hearing).  A transcript of that hearing has been associated with his claims folder.

The record reflects that the Veteran was previously represented by Disabled American Veterans, as indicated by a completed VA Form 21-22 dated in October 2002.  In October 2009, prior to certification of the appeal to the Board, Disabled American Veterans' representation was revoked.  As no current power of attorney is associated with the claims file, the Veteran is now unrepresented.  38 C.F.R. § 20.608(a) (2010).

Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2010) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

The issues of entitlement to service connection for erectile dysfunction and entitlement to a TDIU have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  






FINDING OF FACT

The Veteran had a scrotal lump in service and there is post-service continuity of symptomatology demonstrating a nexus between the Veteran's current scrotal disability and the in-service symptomatology.


CONCLUSION OF LAW

The criteria for service connection for a scrotal disability are met.  38 U.S.C.A. 
§§ 1110, 1113(b), 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

As the Board is granting the claim for service connection for a scrotal disability, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides, including Agent Orange.  38 C.F.R. §§ 3.307, 3.309 (2010).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).

Effective August 31, 2010, VA amended the regulatory provisions governing service connection on a presumptive basis due to exposure to herbicides.  Specifically, the final rule amends 38 C.F.R. § 3.309(e) by adding all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina).  See 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010).   

Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

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.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

VA medical records, including an April 2008 VA examination report, reveal that the Veteran has been diagnosed as having a benign granular cell tumor of the scrotum, status post two surgeries.  Thus, a current scrotal disability has been demonstrated.

As the Veteran served in Vietnam he is presumed to have been exposed to herbicides, including Agent Orange.  38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307.  However, as his currently diagnosed scrotal disability is not a condition listed in 38 C.F.R. § 3.309(e), presumptive service connection on the basis of his exposure to herbicides is not warranted.  38 C.F.R. § 3.309(e); see also 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted).  

Nevertheless, there is evidence of symptoms of an in-service scrotal disability and of a continuity of symptomatology linking those symptoms to the current scrotal disability.  The Veteran has reported on various occasions, including during the January 2011 hearing, that he developed a scrotal lump while serving in Vietnam which worsened in severity and began to discharge pus when he began taking herbal remedies to treat the effects of herbicide exposure.  The lump has reportedly been present ever since that time and is the same lump that has currently been diagnosed as a benign granular cell tumor of the scrotum.

There is evidence that the Veteran engaged in combat while in service.  An in-service scrotal lump, such as that described by the Veteran, could be consistent with the circumstances of his service.  Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b).  

Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute.  First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease."  Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service."  Finally, if the first two requirements are met, VA shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists.  In such a case, a factual presumption arises that the alleged injury or disease is service connected.  Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304.  

Competent evidence of a current disability and of a nexus between service and a current disability is still required notwithstanding the provisions of 38 U.S.C.A. 
§ 1154(b).  Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996).

As the Veteran's reports are consistent with the circumstances of his service, in-service symptoms of a scrotal disability (i.e. a scrotal lump) are conceded. 38 U.S.C.A. § 1154(b).  

In sum, there is evidence of a current scrotal disability and an in-service scrotal lump, and the Veteran has reported that the current scrotal lump has been present ever since service.  The Veteran is competent to report observable symptoms of a scrotal disability, such as a scrotal lump, as well as a continuity of symptomatology.  See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337.  Although there is no contemporaneous medical evidence of a scrotal disability in the years immediately following service, there is no affirmative evidence to contradict his reports and they are otherwise consistent with the evidence of record.  The Board therefore finds that his reports are credible.  

As the Veteran has reported a scrotal lump in service, there is evidence of a current scrotal disability, there is evidence of a continuity of symptomatology since service, and resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for the currently diagnosed scrotal disability have been met.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303.


ORDER

Entitlement to service connection for a scrotal disability is granted.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs