Citation Nr: 1308772 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-08 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for residuals of torsion of the left testicular appendix. 2. Entitlement to service connection for an L5-S1 disc protrusion and bilateral foraminal stenosis. 3. Entitlement to a rating greater than 30 percent for service-connected PTSD, including entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse, father, and brother ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2004 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the above claims. In October 2012, the Veteran and his spouse, father, and brother testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims folder. The claim for an increased rating for PTSD has been recharacterized to include the issue of entitlement to a TDIU, as this issue was raised in connection with the claim for a rating greater than 30 percent for service-connected by PTSD at the October 2012 Board hearing. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issue of entitlement to a rating higher than 30 percent for PTSD, including entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran's left testicular pain was diagnosed as torsion of the appendix of the left testicle in service, and he continues to experience intermittent symptoms of left testicle pain. 2. The Veteran had symptoms of lower back pain in service that were ultimately diagnosed as an L5-S1 disc protrusion and bilateral foraminal stenosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of torsion of the left testicular appendix have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for entitlement to service connection for an L5-S1 disc protrusion and bilateral foraminal stenosis have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided by the Veterans Claims Assistance Act (VCAA), the Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). In this decision, the Board grants all benefits sought by the Veteran for his left testicular disorder and his lower back disorder. As this award constitutes a complete grant of the benefits sought on appeal with regard to those issues, any deficiency in VA's compliance with the duty to notify and assist, as well as the undersigned Veterans Law Judge's compliance with the duties of a hearing officer under 38 C.F.R. § 3.103(c)(2), is harmless error, and no further discussion of these duties is necessary. See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009) (holding that harmless error is a case-specific determination and the Veteran carries the burden of showing prejudice); 38 C.F.R. § 20.1102. The Veteran contends that he is entitled to service connection for a left testicular disorder and a lower back disorder. He specifically contends that he was diagnosed with a herniated disc of the lower back that began in service at a neurological consultation with specialists at the VA Medical Center in Oklahoma City, Oklahoma. He also contends that he continues to suffer from intermittent testicular pain due to a past in-service diagnosis of epididymitis, which was confirmed by ultrasound. 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, 1131; 38 C.F.R. § 3.303(a). A disease diagnosed after service may be service connected when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992); see, e.g., Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In order to establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see generally 38 C.F.R. § 3.303(a). A. Service Connection for a Left Testicular Disorder In November 2005, the Veteran was diagnosed with torsion of the appendix of the left testicle by ultrasound while serving at Ft. Hood, Texas. He sought treatment after experiencing significant pain while doing sit-ups. The November 2005 ultrasound specifically showed a hypoechoic structure arising from the superior pole at the expected level of the testicular appendix of the left testicle. The testes were otherwise normal, including normal epidiymi. At the October 2012 Board hearing, the Veteran testified that he continued to experience symptoms of testicular pain in service and after service, particularly with any strain to the lower abdominal muscles. VA provided him with an examination in March 2008 and he was diagnosed as "status post epididymitis," apparently on the basis of the medical history provided by the Veteran. The condition was noted to be "resolved," with normal examination findings, but the examiner did not state whether the Veteran had any testicular pain. As the March 2008 examiner stated no rationale for providing a diagnosis of "status post epididymitis" when the Veteran's November 2005 ultrasound showed normal epidiymi, and failed to note the Veteran's reports of testicular pain, the specific diagnosis and the characterization of the condition as "resolved" in the examination report are lacking in probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-02 (2008). Rather, as objectively verified by the November 2005 ultrasound report, the proper diagnosis is status post torsion of the appendix of the left testicle. As the Veteran continues to report intermittent symptoms of pain, he is competent to report symptoms of testicular pain, and review of the evidence of record shows no cause for doubting the Veteran's credibility, the existence of his current residual pain, status post torsion of the appendix of the left testicle, is established. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that the Veteran, as a layperson, is competent to report symptoms of pain); 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."); see generally Gardin v. Shinseki, 613 F.3d 1374, 1379-1380 (Fed. Cir. 2010); Pond v. West, 12 Vet. App. 341, 345-47 (1999); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Furthermore, competent medical evidence clearly shows that the Veteran's current disability of status post torsion of the appendix of the left testicle was incurred in November 2005, during active military service at Ft. Hood Texas. Therefore, as the evidence establishes a current disability of residuals of pain, status post torsion of the appendix of the left testicle, and the incurrence of torsion of the appendix of the left testicle during service, service connection for residuals of torsion of the left testicular appendix is warranted. See generally Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303(a). All doubt as to any issue material to this claim has been resolved in favor of the Veteran where the evidence was otherwise in equipoise. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board is responsible for evaluating the evidence of record and assigning due probative weight). B. Service Connection for a Lower Back Disorder In September 2009, the Veteran underwent a neurological consultation in order to resolve the underlying diagnosis of his constant low back pain. A December 2009 record of a lumbar epidural steroid injection shows a subsequent diagnosis of an L5-S1disc protrusion and bilateral foraminal stenosis, confirmed by magnetic resonance imaging (MRI). The December 2009 surgical note shows that the low back pain being treated with steroid injections began three years prior. Further, the Veteran testified to symptoms of back pain in service, and post-service treatment records and VA examination reports show regular reports of back pain and treatment for lower back pain, including steroid injections and regular physical therapy. The Veteran is competent to testify to his symptoms of back pain. Washington, 19 Vet. App. at 368. Further, as his statements regarding his back pain, including statements made for purposes of treatment, are consistent, the Board finds that these statements are credible. Caluza v, 7 Vet. App. at 511. Therefore, the record contains competent and credible evidence of reported symptoms of low back pain, corroborated by records of medical treatment for low back pain, and objectively verified by eventual diagnosis of and treatment for L5-S1disc protrusion and bilateral foraminal stenosis as a result of a neurological consultation as to the underlying cause of the Veteran's symptoms of back pain that began in 2006, during active service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explicitly rejecting a blanket requirement of a medical opinion to establish nexus in a service connection claim and finding that lay testimony can be competent where symptoms described by the Veteran are later confirmed by medical diagnosis); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the record contains several medical opinions against the Veteran's claim, all premised on the lack of an objectively verifiable lower back disorder, none of these opinions were provided following consideration of the Veteran's neurological consultation records, the diagnosis of an L5-S1disc protrusion and bilateral foraminal stenosis, or subsequent treatment with lumbar epidural steroid injections. Consequently, the Board will not find that these medical opinions have any probative weight as they were not based on a complete review of the Veteran's relevant VA treatment records or the relevant lay statements of record. Nieves-Rodriguez, 22 Vet. App. at 302; Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see generally Madden, 125 F.3d at 1481 (discussing the Board's duty to weigh the evidence). Therefore, resolving all doubt as to any factual issue material to the Veteran's claim in his favor, service connection for an L5-S1disc protrusion and bilateral foraminal stenosis is warranted. Davidson, 581 F.3d at 1316; Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303(a); see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Service connection for residuals of torsion of the left testicular appendix is granted. Service connection for an L5-S1 disc protrusion and bilateral foraminal stenosis is granted. REMAND Unfortunately, a remand is required before the Board may finally adjudicate the remaining issues in this appeal. Although the additional delay is regretted, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. When the evidence indicates that there has been a material change in the Veteran's disability or the current rating may be incorrect, VA has a duty to assist a claimant by providing a thorough and contemporaneous medical examination. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994)); 38 C.F.R. § 3.327(a) (2012); see also 38 U.S.C.A. § 5103A(d)(1) (West 2002 & Supp. 2012). Mere passage of time alone does not render a previous VA medical examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007). However, a new examination is appropriate when evidence added to the record, including the Veteran's own statements, suggests that the condition has worsened since the last examination. Caffrey, 6 Vet. App. at 381; VAOPGCPREC 11-95 (1995). Here, the Veteran's last VA examination was in March 2010, nearly three years ago, and medical evidence indicates that the Veteran's psychiatric symptoms are continually worsening. Thus, the Board finds that a more contemporaneous VA examination report is needed in order to assess the current severity of the Veteran's service-connected PTSD, including whether this condition, alone or in conjunction with his other service-connected disabilities, renders him substantially unemployable. See id. Furthermore, entitlement to a TDIU has been raised by the evidence of record. See, e.g., October 2012 Board hearing transcript. Since entitlement to a TDIU is part of the Veteran's increased rating claim, the proper remedy here is for the Board to remand, rather than refer, the TDIU component of the increased rating issue to the agency of original jurisdiction (AOJ) for proper development and adjudication. See Rice, 22 Vet. App. at 453-54; see generally 38 C.F.R. § 4.16. Therefore, on remand, the Veteran and his representative should be provided with notice of any information or lay or medical evidence necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Additionally, prior to the requested examination, appropriate efforts should also be made to obtain any outstanding relevant VA treatment records, to include all outstanding VA mental health treatment records. 38 U.S.C.A. § 5103A(b)(3), (c)(2); 38 C.F.R. § 3.159(c)(2), (3). Any records not duplicative of the evidence already of record should be associated with the Veteran's claims folder to electronic records file. Accordingly, the case is REMANDED for the following action: 1. Send a VCAA notice letter notifying the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU component of the claim on appeal. This notice must indicate what information or evidence the Veteran should provide, and of what information or evidence VA will attempt to obtain on his behalf. 2. Obtain all of the Veteran's outstanding relevant VA treatment records, to include all outstanding VA mental health treatment records. If necessary, contact the Veteran to obtain any additional necessary identifying information. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 3. Then, schedule the Veteran for a VA psychiatric examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies are to be conducted. Following a detailed mental status examination of the Veteran, the examiner is asked to make the following determinations: (a) Identify what symptoms, if any, the Veteran currently manifests, or has manifested during the appellate period, that are specifically attributable to his service-connected PTSD, as opposed to his service-connected traumatic brain injury (TBI) or any other disorder other than PTSD. (b) Discuss the effect of impairment to social and occupational adaptability specifically attributable to PTSD. (c) Assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. (d) Determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities (PTSD, bilateral knee retropatellar pain syndrome, bilateral chronic plantar fasciitis, hypertension, gastroesophageal reflux disease (GERD), postconcussive syndrome with headaches due to TBI, and tinnitus), either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. If this information, or any other requested information, cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. Lastly, the report provided by the examiner must include complete rationales for all opinions and conclusions reached. The examiner should specifically cite to the objective medical findings that the examiner relied upon in reaching the conclusions provided, as well as any medical principles considered in analyzing those findings. 4. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and either (a) return the case to the examiner if all questions posed are not answered or (b) send the Veteran's claims folder to a different VA examiner with the appropriate medical background for an additional medical opinion if the original examiner was not able to provide a conclusive and competent determination on the issue of unemployability in consideration of all the Veteran's service-connected disabilities. 5. Finally, readjudicate the claim on appeal, including the issue of entitlement to TDIU as a component of the Veteran's increased rating claim. If any part of the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case on the denied issue(s) and allow an appropriate time for response. 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). ______________________________________________ John Jones Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs