Citation Nr: 1113555 Decision Date: 04/06/11 Archive Date: 04/15/11 DOCKET NO. 08-20 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a vasectomy. 2. Entitlement to service connection for a bilateral foot disability, to include plantar fasciitis and pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran had active service from September 1986 to June 2005. This matter originally came to the Board of Veterans' Appeals (Board) from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, found that the Veteran was not entitled to service connection for plantar fasciitis and residuals of a vasectomy. The issue of service connection for a bilateral foot disability has been recharacterized to better comport to the evidence of record. See generally Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran testified before the undersigned Acting Veterans Law Judge at a hearing at the RO in October 2010. A transcript of the hearing is of record. The Veteran submitted additional evidence at that time, along with a waiver of consideration by the agency of original jurisdiction. See 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. Resolving all doubt, the competent evidence shows a relationship between the current residuals of a vasectomy and service. 2. Resolving all doubt, the competent evidence shows a relationship between the current bilateral foot disability, to include plantar fasciitis and pes planus, and service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a vasectomy have been met. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010). 2. The criteria for service connection for a bilateral foot disability, to include plantar fasciitis and pes planus, have been met. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The claims of service connection for residuals of a vasectomy and a bilateral foot disability, to include plantar fasciitis and pes planus, have been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Service connection may also be granted if the evidence shows that the condition was observed during service and continuity of symptomatology was demonstrated thereafter, and if the evidence includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Residuals of a Vasectomy The Veteran seeks service connection for residuals of a vasectomy. The Veteran contends that his current epididymitis, pain, and swelling are a result of his vasectomy during service. The competent evidence of record indicates that the Veteran has a current residual of a vasectomy. April 2006 private treatment records note that the Veteran presented with testicular pain and was given an assessment of testicular pain. April 2006 private treatment records note that the Veteran complained of nearly constant pain in his right testicle that is aggravated by exercise. An April 2006 private urological consultation report notes that the Veteran was referred for right scrotal swelling and was given an impression of right epididymitis. A December 2007 VA examination report notes that, following a review of the claim file and a physical examination, the Veteran was given a diagnosis of intermittent testicular pain/epididymitis, not found on today's examination. A September 2010 private treatment record notes that the Veteran stated his pain and swelling has markedly improved and an assessment of resolved epididymitis was given, however another September 2010 private treatment record notes the Veteran complained of left scrotal pain and swelling; an assessment of exacerbation of chronic epididymitis was given. Although, it appears that the Veteran's residuals of a vasectomy, namely epididymitis, has improved and worsened during the pendency of his claim, it is clear that it has been a diagnosed condition with associated pain and swelling at periods during the pendency of his claim. Thus, he has a current disability for purposes of 38 C.F.R. § 3.303. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). The Veteran's service treatment records (STRs) dated in July 1999 note that he complained of testicle pain and was given an assessment of epididymitis versus testicular cancer, will get ultrasound. October 1999 private treatment records note that an ultrasound of the Veteran was performed and revealed no epididymal abnormalities. A May 2003 STR notes that the Veteran desires a vasectomy for permanent sterilization. An undated surgical report indicates that the Veteran was prepped for surgery and had a vasectomy. A July 2003 STR notes that the Veteran recently had a vasectomy. As the record shows epididymitis and there is evidence of a vasectomy procedure during service, the determinative issue is whether these are related. An April 2006 private treatment record notes that the Veteran was given an impression of evidence of right epididymitis and the treating clinician noted that this is not an unusual thing after having a vasectomy. A VA examination was conducted in December 2007. The examiner noted a review of the Veteran's claim file and that the Veteran reported that he has had intermittent testicular pain since a vasectomy in 2003, and that he had one episode prior to his vasectomy in 1999. The examiner noted that the Veteran had a vasectomy in May 2003 at Tindal Air Force Base. The examiner opined that the Veteran's intermittent testicular pain and epididymitis is most likely caused by or a result of his vasectomy during service, but that this is a known complication of the procedure and was clearly explained to the Veteran prior to the vasectomy. In the January 2008 rating decision and subsequent statement of the case (SOC) and supplemental statements of the case (SSOCs), the RO found that the Veteran's surgery during service was an elective procedure with the risks and benefits explained and that there is no evidence of any complications. However, unlike a claim for compensation under 38 U.S.C.A. § 1151, which provides that additional disability resulting from VA hospital care caused by carelessness, negligence, or lack of proper skill, a claim for direct service connection has no such requirement of fault or evidence of a complication not reasonably foreseeable. See 38 C.F.R. §§ 3.303, 3.358, 3.361. Additionally, there was no indication the Veteran had a preexisting disability. In fact, the June 1986 examination conducted in connection with the Veteran's enlistment with service described the Veteran's genitourinary system as normal. In fact the Veteran only reported a past history of a painful or trick shoulder on the June 1986 report of medical history. As there was no preexisting genitourinary condition, the regulations concerning aggravation, including 38 C.F.R. § 3.306(b)(1), do not apply to the instant case. The April 2006 private treatment record and December 2007 VA examination report clearly indicate that the Veteran's current residuals of a vasectomy, including testicular pain and epididymitis, is related to, and had its onset during, service. These medical opinions are competent and there is no medical evidence of record that indicates that the Veteran's current residuals of a vasectomy are not related to service. Therefore, at the very least, the evidence is in equipoise and any doubt is resolved in the Veteran's favor. Accordingly, service connection for residuals of a vasectomy is warranted. IV. Bilateral Foot Disability The Veteran seeks service connection for bilateral foot disability, to include plantar fasciitis and pes planus. The Veteran testified at his October 2010 hearing that during service he was on his feet for eight to twelve hours a day in combat boots marshalling airplanes and that his feet hurt. He testified further that he continued to experience foot pain until he retired and that he used shoe inserts. Finally, he testified that 1 year after service he began seeing a foot doctor. The competent evidence of record indicates that the Veteran has a current bilateral foot disability. An April 2006 private treatment record indicates that the Veteran was referred to a podiatrist for an evaluation for foot pain and was given an assessment of foot pain. A July 2006 VA examination conducted in conjunction with a different claim notes that the Veteran's feet were normal. A June 2007 private treatment record notes that the Veteran complained of left heel pain going on for the last eight months. An assessment of plantar fasciitis was given. An October 2007 insurance factual reconsideration document notes that the Veteran requested that his custom fabricated orthotic foot device be covered; the decision was upheld. An April 2008 private medical opinion notes that the Veteran has chronic bilateral planter fasciitis and bilateral pes planus. A through review of the Veteran's voluminous STRs does not indicate that he complained of, or was treated for, planter fasciitis or pes planus. A STR dated in August 2000 note that the Veteran stepped on glass and that he had "N. plantar fascitis, N. Achilles insert, and N. for foot" and concluded with an assessment of questionable foreign body in the foot. An October 2001 STRs note that the Veteran had a right toe injury and was to wear tennis shoes. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Veteran is competent to report that he experienced foot pain while standing and walking during his nearly 20 years of active service. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). There is no evidence of record indicating that the Veteran did not experience foot pain during service. Given, as reflected by the April 2006 private treatment record, that the Veteran sought treatment for foot pain and was referred to a podiatrist within one year of separation from service, the Board finds that his statements that he experienced foot pain during and after service to be credible. Furthermore, statements from the Veteran's wife indicated the Veteran complained of pain of his feet since service. As the record shows a current bilateral foot disability, to include plantar fasciitis and pes planus, and there is competent and credible evidence of foot pain during service, the determinative issue is whether these are related. An April 2008 private medical opinion notes that the Veteran has chronic bilateral planter fasciitis and pes planus and that these are acquired conditions connected to the Veteran's military experience. A medical opinion based on speculation, without supporting clinical data or other rationale does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Although the April 2008 private medical opinion does not provide a cogent rationale for its conclusion that the Veteran's bilateral foot disability is related to service, it still has some probative value and is competent medical evidence. The Veteran has credibly testified to a continuity of foot pain from service to the present. As noted above, he is competent to do so. See Savage, 10 Vet. App. at 488. There is no medical evidence of record that indicates that the Veteran's current bilateral foot disability is not related to service, and the close temporal proximity (less than one year) between the Veteran's separation from service and first evidence of treatment for his feet weighs in favor of granting service connection. See conversely Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service). Therefore, at the very least, the evidence is in equipoise and any doubt is resolved in the Veteran's favor. Accordingly, service connection for bilateral foot disability, to include plantar fasciitis and pes planus, is warranted. ORDER Entitlement to service connection for residuals of a vasectomy is granted, subject to the provisions governing the award of monetary benefits. Entitlement to service connection for a bilateral foot disability, to include plantar fasciitis and pes planus, is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ H. SEESEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs