Citation Nr: 1301474	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  09-50 758	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for a right ankle disorder, claimed as tibial tendonitis.

2.  Entitlement to service connection for a skin disorder of the abdomen.

3.  Entitlement to service connection for a skin disorder of the bilateral lower extremities.

4.  Entitlement to service connection for a skin disorder of the bilateral feet.

5.  Entitlement to service connection for a chronic groin disability, to include orchitis.

6.  Entitlement to service connection for a chronic respiratory disability.

7.  Entitlement to service connection for residuals of renal cancer, claimed as loss of kidney.

8.  Entitlement to service connection for hypertension.

9.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Katz, Counsel


INTRODUCTION

The Veteran served on active duty from April 1984 to April 2004.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO).

These matters were previously before the Board in May 2011 when they were remanded for further development of the evidence.  As to the matters adjudicated on the merits herein, the requested development has been accomplished, and all matters are again before the Board for appellate consideration.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

In an October 2012 decision, the RO granted the Veteran's claims for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, and entitlement to service connection for a left knee disorder.  The RO's October 2012 rating decision constitutes a full grant of the benefits sought on appeal with regard to those issues.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Accordingly, there is no case or controversy remaining with respect to the Veteran's claims for entitlement to service connection for an acquired psychiatric disorder or a left knee disorder.  Id.  Additionally, the Board observes that the RO considered and denied a claim for entitlement to service connection for a left leg disorder in its October 2012 supplemental statement of the case and that the Veteran's representative addressed that issue in the December 2012 post-remand brief.  However, in its May 2011 decision, the Board dismissed the issue of entitlement to service connection for a left leg disorder, separate and distinct from his service-connected recurrent lymphangitis, cellulitis, and lymphedema of the left lower extremity, as the Veteran withdrew that issue during a December 2010 videoconference hearing before the Board.  Accordingly, the issue of entitlement to service connection for a left leg disorder is not presently before the Board.

The issues of entitlement to service connection for a skin disorder of the abdomen, right lower extremity, left lower extremity, and feet; renal cancer, and hypertension 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.


FINDINGS OF FACT

1.  The medical evidence of record does not show a diagnosis of a right ankle disorder at any time during the period on appeal.

2.  The medical evidence of record does not show a diagnosis of a chronic groin disability, to include orchitis and/or inguinal strain, at any time during the period on appeal.

3.  The medical evidence of record does not show a diagnosis of a chronic respiratory disability at any time during the period on appeal.

4.  The medical evidence of record does not show left ear or right ear hearing loss disability for VA purposes at any time during the period on appeal.


CONCLUSIONS OF LAW

1.  A right ankle disability was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

2.  A chronic groin disability, to include orchitis and/or inguinal strain, was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

3.  A chronic respiratory disability was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

4.  Bilateral hearing loss disability was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims for entitlement to service connection for a right ankle disability, orchitis, a chronic respiratory disability, and bilateral hearing loss disability, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  Prior to the initial adjudication of the Veteran's claims, a June 2008 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence.  Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009).  Thus, the Board finds that the content requirements of the notice VA is to provide have been met.  See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

The duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records, VA treatment records, and identified private medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board notes that the Veteran identified private treatment records related to his claimed chronic respiratory disorder and orchitis during his December 2010 hearing before the Board.  Accordingly, the RO sent the Veteran a letter in August 2011 requesting that he identify the source of the private records and provide the appropriate authorizations for all private providers so that the RO could obtain and consider those records.  However, the Veteran did not respond to the RO's August 2011 letter.  The duty to assist is not a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where his action is instrumental to obtaining evidence which could potentially support his claim.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  As such, the Board finds that it does not have a further duty to assist the Veteran in obtaining those private treatment records identified during his December 2010 hearing.

In addition, the Veteran was afforded VA examination with regard to his claims for entitlement to service connection for a right ankle disorder, a chronic respiratory disorder, orchitis, and bilateral hearing loss in June 2011 and July 2011.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA opinions obtained in this case are adequate, as they are predicated on a reading of the service and post-service medical records in the Veteran's claims file, interviews of the Veteran, and current clinical examinations.  The examiners considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and the statements of the Veteran, and provided a complete rationale for the opinions stated.  There is adequate medical evidence of record to make a determination in this case, and the Veteran does not allege that the VA examinations provided with respect to these issues are inadequate in any way.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

There is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran contends that he currently has a right ankle disorder, orchitis, a chronic respiratory disorder, and bilateral hearing loss as a result of his active duty service.  During a December 2010 hearing before the Board, the Veteran testified that he injured his right ankle at various times, but that there was very little documentation.  He stated that he was not diagnosed with a right ankle disability since service, but that he had symptoms of pain and swelling which were the same symptoms that he had during service.  The Veteran's representative noted that hearing loss was diagnosed in 2004 at the time of the Veteran's separation examination.  The Veteran indicated that he was exposed to acoustic trauma during service.  The Veteran also testified that he had orchitis symptoms during service and thereafter.  He described his symptoms as a sore left testicle.  With regard to his claimed respiratory disorder, the Veteran reported a history of respiratory infections, commonly occurring several times during the winter.  He noted treatment at a local doctor as well as an emergency room visit for his respiratory infections since service discharge.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection for certain chronic diseases, including sensorineural hearing loss, will be presumed if they are manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). 

Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant may rely on lay evidence "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) (footnote omitted).  "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). 

Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz  are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran's service treatment records reveal complaints of a loss of hearing acuity, right ankle pain, and left testicle pain.  A March 1984 service entrance examination reveals that the Veteran's lower extremities, genitourinary system, lungs and chest, and ears were normal.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
5
0
0
5
5

A March 1984 report of medical history reflects that the Veteran denied hearing loss, chronic or frequent colds, asthma, shortness of breath, pain or pressure in the chest, and foot trouble.  On the authorized audiological evaluation in April 1984, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
-5
0
0
5
LEFT
10
0
0
5
0

Examinations dated in October 1984, February 1988, and June 1994 reflect that his lower extremities, genitourinary system, lungs and chest, and ears were normal.  A May 1984 service treatment record notes that the Veteran twisted his right ankle.  The Veteran reported right ankle pain.  There was moderate tenderness with no evidence of edema, erythema, or ecchymosis.  Range of motion was limited due to pain.  The diagnosis was unresolved ankle strain.  Another May 1984 record reveals that the Veteran felt 99 percent better, but still had mild tenderness in the posterior right medial malleous without swelling or erythema.  There was no pain with range of motion.  The diagnosis was resolving posterial tibial tendonitis in the right foot.  Additional May 1984 treatment records reflect continued reports of right ankle pain with slight tenderness.  A June 1984 service treatment record reflects that the Veteran reported tenderness in the left inguinal region.  The diagnosis was probable inguinal strain.  Another June 1984 record notes that the Veteran complained of recurrent groin pain with onset several days before.  He had tenderness to the left testicle and pubic region.  The diagnosis was probable orchitis second to heavy lifting.  A record from the following day notes a diagnosis of resolving orchitis.  Several days after that, the Veteran presented with continued complaints of pain in the scrotum and left groin.  The diagnosis was possible inguinal strain.  In July 1984, the Veteran reported a history of trauma to his right ankle during a tug-of-war.  On examination, there was mild edema, but no erythema or ecchymosis.  There was tenderness over the tibial tendon.  Range of motion was limited.  The diagnosis was mild grade right ankle inversion sprain.

The Veteran underwent another audiological evaluation in September 1984.  The pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
5
10
10
LEFT
15
10
5
15
10

On authorized audiological evaluation in October 1984, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
0
10
LEFT
5
0
0
5
25

The results of a December 1984 audiological evaluation show pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
0
0
5
10
LEFT
5
5
5
5
5

On the authorized audiological evaluation in February 1988, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
10
0
0
0
0

The Veteran underwent another audiological evaluation in April 1991.  The results, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
0
5
LEFT
0
0
0
0
5

On the authorized audiological evaluation in June 1994, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
0
5
LEFT
0
0
0
0
5

A June 1994 report of medical history reveals that the Veteran denied hearing loss, asthma, shortness of breath, pain or pressure in the chest, and foot trouble.  A May 1997 report of medical history also shows that the Veteran denied hearing loss, asthma, shortness of breath, pain or pressure in the chest, chronic cough, and foot trouble.  A June 1998 report of medical history reveals that the Veteran denied wearing hearing aids, having hearing loss, chronic or frequent colds, asthma, shortness of breath, pain or pressure in the chest, and foot trouble.

A June 2003 post-deployment health assessment notes the Veteran's report that his health stayed about the same during his deployment.  He denied chronic cough and difficulty breathing.  On authorized audiological evaluation in February 2004, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
30
30
LEFT
10
15
25
20
30

A second audiological evaluation performed nine days later that same month revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
30
20
LEFT
10
10
25
25
20

A March 2004 separation examination shows that the Veteran's ears, lungs and chest, external genetalia, lower extremities ,and feet were normal.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
30
20
LEFT
5
10
20
25
15

In a report of medical history, completed at that time, the Veteran denied asthma or any breathing problem related to exercise, weather, pollens, etc.; shortness of breath; bronchitis; wheezing; chronic cough; chronic or frequent colds; and foot trouble.  He reported hearing loss and swollen or painful joints, and explained that he believed that his hearing had worsened and that both ankles were swollen off and on for about a year.  The examining physician noted decreased hearing and hearing loss by testing and swelling of the ankles on occasion.  Another March 2004 medical assessment notes that the Veteran had bilateral ankle swelling and hearing loss on testing.

The post-service medical evidence is negative for any complaints of or treatment for a respiratory disorder, a right ankle disorder, orchitis, or bilateral hearing loss.  October 2006 private treatment records note that a computed tomography (CT) scan of the chest showed a couple of lung nodules that were suspicious for metastatic disease, however there was no conclusive diagnosis.  The private records also note the Veteran's complaints of shortness of breath.  However, examination of the chest showed that the lungs were clear to auscultation and percussion, and there was no diagnosis of a respiratory disorder.

A June 2011 VA audiological examination notes the Veteran's complaints of difficulty hearing.  The Veteran reported that he believed that his hearing was not as good as it used to be, but denied any significant problems.  The Veteran described noise exposure during service while working with paint chippers and grinders, performing ship maintenance.  He also noted exposure to aircraft noise on the flight deck, but stated that hearing protection was always used on the flight deck.  He denied excessive occupational or recreational noise exposure after service discharge.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
15
15
LEFT
10
10
15
25
30

The average in the right ear was 13.75 decibels, and the average in the left ear was 20 decibels.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.  Immittance measures were within normal limits for both ears, suggesting the absence of middle ear pathology, bilaterally.  The diagnosis was normal hearing in the right ear through 8000 Hertz (Hz) and normal hearing through 8000 Hz in the left ear with the exception of a mild sensorineural hearing loss found at 4000 Hz.  

In July 2011, the Veteran underwent a VA respiratory examination.  The Veteran reported that he developed wheezing during service, which he related to exposure to pollen.  He noted current symptoms of wheezing in the spring and fall, but denied treatment.  He denied chronic cough or fever.  He also indicated that he might have some shortness of breath on moderate exertion.  Physical examination revealed no evidence of congestive heart failure or pulmonary hypertension.  Heart sounds were present and there were no extra heart sounds.  Rhythm was regular.  There was no evidence of abnormal breath sounds.  There was also no evidence of asthma.  Diaphragm excursion and chest expansion were normal.  There were no conditions that may be associated with pulmonary restrictive disease.  There was no chest wall scarring, no deformity of the chest wall, no signs of significant weight loss or malnutrition, and no other important physical findings.  Pulmonary function tests were performed, which were normal.  The examiner concluded that there was no diagnosis of a respiratory condition, as pulmonary function tests and clinical examination were negative.

In July 2011, the Veteran also underwent a VA genitourinary examination.  The examiner stated that there were no general systemic symptoms due to genitourinary disease, no urinary symptoms, no urinary leakage, no history of recurrent urinary tract infection, no history of obstructed voiding, no history of urinary tract stones, no history of acute nephritis, and no history of hydronephrosis.  There was a history of erectile dysfunction.  Physical examination revealed no abdominal or flank tenderness, a normal bladder examination, normal anus and rectum walls examination, normal urethra examination, and normal perianal sensation.  There was peripheral edema in the left ankle.  Bulbocavernosus reflex was normal, but the right dorsalis pedis pulse, the right posterior tibial pulse, the left dorsalis pedis pulse, and the left posterior tibial pulse ere decreased.  Examination of the penis, testicles, epididymis/spermatic cord/scrotum and seminal vesicles was normal.  The cremasteric reflex was decreased.  The examiner discussed the Veteran's history of renal cell carcinoma, its treatment, and its residuals.  The VA examiner diagnosed resolved inguinal strain which was not currently active, and noted that there was no firm evidence of orchitis in the past or present.  After reviewing the Veteran's claims file, performing an examination, and conducting an interview of the Veteran, the VA examiner stated that there was "no current evidence of either orchitis or inguinal strain, or any residuals of an alleged orchitis or a possible inguinal strain."

In July 2011, the Veteran underwent a VA joints examination.  The Veteran reported that he twisted his right ankle during service and that he had current symptoms of aching.  The examiner stated that there was no evidence of deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, dislocation or subluxation, locking episodes, effusions, inflammation, or other symptoms associated with the Veteran's right ankle, but he did report pain.  Physical examination of the right ankle revealed tenderness medially and laterally, but no ankle instability, tendon abnormality, or angulation.  Range of motion of the right ankle revealed dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 55 degrees.  There was no objective evidence of pain with range of motion.  There was no joint ankylosis.  X-rays of the right ankle showed posterior and inferior calcaneal spurs and diffuse lower extremity edema.  The examiner concluded that there was no diagnosis for the Veteran's right ankle condition.  The examiner explained that the x-ray findings of spurring were "distant from the site of pain" and noted that clinical examination and x-rays failed to provide a diagnosis.

Service connection is not warranted for bilateral hearing loss, orchitis or inguinal strain, a right ankle disorder, or a respiratory disorder, as the competent evidence of record does not show that the Veteran has current diagnoses of orchitis or inguinal strain, a right ankle disorder, a respiratory disorder, or impaired hearing which meets the requirements of a disability for VA purposes at any time during the appeal period.  38 C.F.R. § 3.385; see Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  Although requested by the RO, the Veteran has failed to produce any medical evidence showing current diagnoses of a respiratory disorder, a right ankle disorder, orchitis or inguinal strain, or bilateral hearing loss for VA purposes.  Additionally, VA examinations provided in June 2011 and July 2011 failed to find any diagnosed respiratory disorder, right ankle disorder, orchitis or inguinal strain, or bilateral hearing loss for VA purposes.  "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . .  In the absence of proof of present disability there can be no valid claim."  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  While the Veteran reported a history of diagnoses of and treatment for chronic respiratory infections, there is no medical evidence of record confirming such a diagnosis.  Additionally, while the Veteran had swelling and calcaneal spurs in his right ankle, the VA examiner concluded that he did not have a diagnosed right ankle disability despite those x-ray findings.  Further, in spite of his complaints of pain in the area of the left testicle, there is no medical evidence of orchitis or inguinal strain.  Finally, none of the medical evidence of record reflects that the Veteran currently has bilateral hearing loss which VA considers to be a disability, as the Veteran's hearing acuity does not meet the threshold set forth in the VA regulations to establish hearing loss as a disability for VA purposes.  38 C.F.R. § 3.385.  Accordingly, in the absence of competent medical evidence of diagnoses of a chronic respiratory disorder, a right ankle disorder, orchitis or inguinal strain, or bilateral hearing loss disability for VA purposes, at any time during the appeal period, the criteria for establishing service connection for those disorders have not been established.  38 C.F.R. § 3.303. 

While the Veteran has submitted lay statements and provided testimony that he currently has respiratory infections, a right ankle disorder, orchitis or inguinal strain, and bilateral hearing loss, but has not been shown to have had any medical training in this case.  As such, he is not competent to offer diagnosis and/or causation opinions on complex medical matters, as in this case.  Jandreau, 492 F.3d at 1376-77; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  The Board acknowledges that the Veteran's lay statements are competent evidence that he currently has symptoms of his claimed disabilities, including respiratory symptoms, right ankle pain and swelling, pain in the left testicle, and loss of hearing.  See Layno v. Brown, 6 Vet. App. 465 (1994).  However, the lay statements and testimony are not competent evidence to show that the Veteran has bilateral hearing loss that meets the requirements for disability set forth in 38 C.F.R. § 3.385, a chronic respiratory disorder, a right ankle disability, or orchitis or inguinal strain at any time during the appeal.  Espiritu, 2 Vet. App. at 495.  Although the Veteran is competent to report that he has pain in his right ankle and left testicle, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).  Additionally, the VA examiner considered the Veteran's complaints of pain in the left testicle and right ankle and the x-ray evidence of swelling in the right ankle, but concluded that there was no diagnosed orchitis, inguinal strain, or right ankle disorder.

As the preponderance of the evidence is against the Veteran's claims for entitlement to service connection for a chronic respiratory disorder, a right ankle disorder, a chronic groin disability to include orchitis and/or inguinal strain, and bilateral hearing loss, the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a right ankle disorder is denied.

Service connection for a chronic respiratory disorder is denied.

Service connection for orchitis or inguinal strain is denied.

Service connection for bilateral hearing loss is denied.


REMAND

Additional development is necessary in order to comply with VA's duty to assist with regard to the Veteran's claims for entitlement to service connection for residuals of renal cancer; skin disorder of the abdomen, right lower extremity, left lower extremity, right foot, and left foot; and hypertension.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Although the Veteran was provided with VA examinations addressing the existence and etiology of his claimed skin disorder, residuals of renal cancer, and hypertension in July 2011, the Board finds that further consideration, explanation, and rationale is needed by the VA examiners who conducted those examinations. 

With regard to the Veteran's claim for entitlement to service connection for a skin disorder of the abdomen, the bilateral lower extremities, and the bilateral feet, the July 2011 VA examiner diagnosed tinea cruris and found that there was no diagnosis of a foot rash.  It is unclear from the examination report whether the other claimed areas involving the abdomen, right lower extremity, or left lower extremity were examined to determine whether there was evidence of a skin disorder on those locations.  Additionally, the examiner opined that the Veteran's tinea cruris was related to his military service.  The examiner also stated that, although the Veteran described symptoms compatible with recurring tinea pedis, the condition was not identified on examination, and did not provide a nexus opinion with regard to the Veteran's reported symptoms.  

Initially, as noted above, it does not appear that the VA examiner examined the Veteran's abdomen, right lower extremity, or left lower extremity for evidence of a skin disorder, as directed by the Board in its May 2011 remand.  RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  Thus, the Veteran should be provided with a new skin examination which adequately addresses all of his claimed skin disorders.  Additionally, although the VA examiner found no evidence of tinea pedis on examination, the examiner noted that the Veteran reported symptoms which were compatible with recurring tinea pedis.  As the Veteran is competent to report symptoms capable of lay observation, the Board believes that the examiner should provide an opinion as to whether the Veteran's reported symptoms of tinea pedis are related to his active duty service.  The RO should try to schedule the Veteran's VA skin examination during a period of flare-up of his claimed skin disorders.  See Ardison v. Brown, 2 Vet. App. 405 (1994) (holding that in evaluating disabilities that are subject to periodic exacerbations or outbreaks, an examination should be scheduled during such an exacerbation).

With regard to the VA examination addressing the etiology of the Veteran's hypertension, the Board believes that additional explanation and rationale is needed by the VA examiner who conducted the July 2011 VA examination.  The VA examiner diagnosed hypertension, but concluded that the Veteran's hypertension was not related to his active duty service because the elevated blood pressure readings shown during service did not meet the stringent requirements set forth in the medical literature to support a conclusive diagnosis of hypertension during service.  However, entitlement to service connection does not require a claimed disability to be diagnosed during service, and the examiner did not provide an opinion as to whether the Veteran's hypertension is related to his active duty service, to include the in-service evidence of elevated blood pressure readings.  Thus, although the evidence contained in the Veteran's service treatment records may not be sufficient to establish a diagnosis of hypertension at that time, service connection may still be awarded if the Veteran's current hypertension is related to his active duty service, to include the in-service symptoms of elevated blood pressure.  As the VA examiner did not provide an opinion as to whether the Veteran's current hypertension is related to his active duty service, to include the in-service evidence of elevated blood pressure, the Board finds that the Veteran's claims file should be returned to the VA examiner who provided the July 2011 examination to provide this opinion with supporting explanation and rationale for all conclusions reached.

Last, in its May 2011 Remand, the Board requested that the RO obtain an opinion by a "VA physician specializing in urology" (emphasis in original) to determine the onset date of the Veteran's renal cell carcinoma and provide an opinion as to whether it is at least as likely as not that the Veteran's renal cell carcinoma was causally related to active duty service.  The RO provided the Veteran with a VA genitourinary examination in July 2011, but review of the examination report does not reflect that it was performed by a VA physician specializing in urology.  In fact, it appears that the examination was performed by a general examiner, as the examiner who provided the opinion with regard to the onset date of the Veteran's renal cancer was the same examiner who performed the VA joints, skin, hypertension, and respiratory examinations.  As noted above, RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance.  Stegall, 11 Vet. App. at 268.  As the record does not reflect that the RO provided the Veteran with a VA examination by a VA physician specializing in urology, the Veteran's claim for entitlement to service connection for renal cancer must be remanded for compliance with the Board's May 2011 remand directives.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Provide the Veteran with a new VA examination addressing the etiology of his claimed skin disorders of the abdomen, right lower extremity, left lower extremity, right foot, and left foot.  This examination must be scheduled during a period of flare-up of the Veteran's skin disorder, which is likely to occur at short notice.  The examining facility must be fully informed of the unusual requirements in this case and communicate with the Veteran as necessary to maximize the likelihood of performing the examination during a flare-up of the claimed condition.  Appropriate instructions must be provided to the Veteran in this regard.  The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must specify in the report that the claims file and electronic records were reviewed.  All pertinent symptomatology and findings must be reported in detail.  All indicated tests and studies must be accomplished.  Based upon the evidence of record, to include the Veteran's lay statements as to onset and continuity of symptoms both during service and thereafter, the VA examiner must provide an opinion as to:

* Whether the Veteran currently has a skin disorder of the abdomen, right lower extremity, left lower extremity, right foot, and left foot?

* Whether it is at least as likely as not that any of the Veteran's diagnosed skin disorders, or competent reports of symptoms of a skin disorder sufficient to establish a diagnosed skin disorder, are related to the Veteran's active duty service.  

A complete rationale for all opinions must be provided.  If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  

2.  Contact the VA examiner who conducted the July 2011 VA hypertension examination and request that he provide a supplemental opinion with regard to the etiology of the Veteran's hypertension.  The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must state that this evidence has been reviewed.  The examiner must provide an opinion as to:

* Whether it is at least as likely as not that the Veteran's current hypertension is related to his active duty service, to include the elevated blood pressure readings found in the service treatment records, despite the fact that the elevated blood pressure readings in the service treatment records may not be sufficient to establish a conclusive diagnosis of hypertension at that time in accordance with the requirements set forth in the medical literature?

* Whether it is at least as likely as not that the Veteran's current hypertension had its onset during the Veteran's active duty service?  

The examiner must consider and address the Veteran's lay statements regarding onset and continuity of symptoms during and after service discharge.  A complete rationale for all opinions must be provided.  If the examiner cannot provide the requested opinions without resorting to speculation, the examiner must provide the reasons why an opinion would require speculation.  

3.  Forward the Veteran's claims file and all electronic records to a VA physician specializing in urology to obtain an opinion regarding the onset date of the Veteran's renal cell carcinoma.  After examining the record, the physician must provide an opinion as to: 

* Whether it is at least as likely as not (50 percent or more) that the Veteran's renal cell carcinoma is causally related to his active duty service?  

The VA physician must provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles.  The physician must review the claims file and this fact must be noted in the accompanying medical report.

4.  Thereafter, the RO should readjudicate the issues on appeal.  If any benefit sought remains denied, the RO should issue a supplemental statement of the case and afford the appropriate opportunity to respond.  Thereafter, the case should be returned to the Board, as warranted.

The appellant 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. 2012).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs