Citation Nr: 1311311 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-02 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for total left testicular atrophy as a residual of left testicular torsion (previously phrased as left orchiectomy). 2. Entitlement to service connection for a respiratory disability, to include as secondary to asbestos. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to January 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a Travel Board hearing in June 2012 before an Acting Veterans Law Judge (AVLJ) who is no longer with the Board; a transcript of that hearing is associated with the claims file. The Veteran was notified in a February 2013 letter that the AVLJ who conducted the Veteran's hearing is no longer employed by the Board. The Veteran replied to this letter in March 2013 expressly indicating that he did not wish to appear at a new Board hearing and desired to have the Board decide the case on the record. After a review of the entire claims folder, to include the Veteran's testimony, the Board has rephrased the left testicular claim on appeal to better conform to the facts of this case. The Board has also recharacterized the issue of service connection for chronic obstructive pulmonary disease (COPD) as entitlement to service connection for a respiratory disability in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Board also notes that the Veteran initiated, but did not perfect, appeals in the matters of entitlement to service connection for right and left wrist disabilities. Hence, those matters are not before the Board. Finally, the Board notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of service connection for a respiratory disability 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. FINDING OF FACT The Veteran has experienced total left testicular atrophy resulting from left testicular torsion incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for total left testicular atrophy as a residual of left testicular torsion (previously phrased as left orchiectomy) have been met. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As the claim is granted in full, the Board finds that a discussion of any potential VCAA errors is not necessary. Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records show that, in August 1971, the Veteran was treated for pain in the left testis and the testis was slightly swollen and tender. On physical examination, it was noted that initially the swelling was thought to lie alongside the testis and a normal testis could be felt in addition to the swollen area. However, it progressed to a massive swelling within the left half of the scrotal sac. It was felt that he had a torsion of the left testis. After two and a half weeks in the hospital, he was placed on two week convalescent leave. A September 10, 1971 report noted the Veteran had a "dead" left testis. A September 15, 1971 private medical letter noted the Veteran was seen on September 13, 1971, and that his left testis was stony hard. In October 1971, it was noted that physical examination revealed both testes to be descended and essentially normal. It was noted that he returned from convalescent leave and has experienced no difficulties. On October 25, 1971, he underwent bilateral testicular fixation and did well postoperatively. He was discharged on October 29, 1971, with a diagnosis of left testicular torsion, condition improved. On October 1977 separation examination, clinical evaluation of the genitourinary system was normal, and there was no report of any complaints or symptoms. The Veteran filed a claim in August 2008 for "amputation of Left Testicle." On January 2009 VA genitourinary examination, the Veteran reported that his left testis got twisted during service, he experienced severe pain and sought treatment. He denied any current symptoms. On physical examination, the left testis was absent. The examiner, after a review of the claims file, opined that it is less likely as not (less than 50/50 probability) the Veteran's left orchiectomy (i.e., excision of one or both testes) is caused by or a result of left testicular torsion and fixation during active duty. The examiner based the opinion on the absence of any mention of a left orchiectomy in the service treatment records and his exit physical examination in 1977 showed a normal genitourinary system. At the June 2012 Travel Board hearing, the Veteran reported that he had pain in his left testis and experienced massive swelling during his active service. He further testified that the left testis was tied inside the scrotum sac and that he was told it would go into the bloodstream and dissipate. Based on a review of the evidence of record, the Board finds that service connection for left testicular atrophy resulting from left testicular torsion incurred in service is warranted. At the outset, the Board must address the characterization of the claim on appeal. The Veteran initially claimed service connection for "amputation" of the left testicle. The VA examiner appears to have presumed that the left testicle was surgically removed and, therefore, bore no relationship to the left testicular fixation during service. However, the Veteran testified in June 2012 that he had not undergone any surgical procedure for the left testicle other than the left testicular fixation performed during service. Clearly, the Veteran is competent to recall the number of surgical procedures performed on his left testicle. Rather, the Veteran explained his understanding that his left testicle had "dissolved" or "dissipated." He obtained this information from military examiners. As instructed in Jandreau, a lay person is clearly competent to report a diagnosis or, in this case, a prognosis by his treating physician. This information, in turn, appears to be corroborated by medical literature which reports that testicular torsion may result in testicular atrophy - including total atrophy. See generally http://www.urologyhealth.org/urology/index.cfm?article=34; http://link.springer.com/article/10.1007%2FBF00452875?LI=true#page-1. In this case, there is no evidence that the Veteran underwent a left orchiectomy. As such, the only plausible scenario presented is that his left testicle completely atrophied as a result of the left testicular torsion in service. This theory correlates with the inservice impression that the left testicle was "dead." Thus, the Veteran's recollection of military examiner prognosis appears to be reliable. Resolving reasonable doubt in favor of the Veteran, the Board grants a claim of service connection for total left testicular atrophy as a residual of left testicular torsion (previously phrased as left orchiectomy). ORDER Service connection for total left testicular atrophy as a residual of left testicular torsion (previously phrased as left orchiectomy) is granted. REMAND Regarding the claim for service connection for a respiratory disability, the Board notes that, in October 2009, a negative response was received from the Social Security Administration (SSA) regarding any outstanding records. However, at the June 2012 Travel Board hearing, the Veteran testified that he was receiving SSA disability benefits for his respiratory complaints and symptoms. Any medical records considered in connection with his claim for SSA benefits are clearly relevant to this claim. As such, the Board must remand this case to obtain SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Veteran alleges that his respiratory disability results from chemical and asbestos exposures during service. His service treatment records document that he worked in a Structural Repair Shop as a carpenter, wherein he was exposed to "dusts." A March 2009 private medical opinion found that the Veteran had "bilateral parenchymal scarring" which could be due to exposure to chemicals, fumes from construction agents or infiltrates from a pneumonic or infectious process. The Veteran was afforded VA examination in January 2009. The VA examiner diagnosed COPD and found that it was less likely than not related to asbestos exposure. No opinion was offered as to whether the COPD, and specifically the "bilateral parenchymal scarring," could be attributable to the environmental hazards the Veteran experienced in the Structural Repair Shop, including the chemicals and construction agent fumes discussed by the private examiner. This examination report, therefore, must be returned as inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (found that once VA undertakes the effort to provide an examination, it must provide an adequate one). Finally, the Board notes that the Veteran testified at the hearing that he has received VA and private medical treatment for his respiratory disability. If there are pertinent, outstanding VA medical records pertaining to the issue on remaining on appeal, there is a duty to obtain such records. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran identify any outstanding VA or private treatment records pertaining to his respiratory disability, to specifically include records from Dr. E.A.C. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. 2. The RO should secure for the record copies of the complete SSA records pertaining to the Veteran, to include all medical records considered in any determination on a claim for SSA disability benefits. If such records are unavailable, it must be so certified for the record (with an explanation of the reason why they are unavailable). 3. Upon completion of the above, send the claims folder to an appropriately qualified medical doctor for an addendum opinion regarding the nature and etiology of the Veteran's current respiratory disorder(s). Following review of the claims folder, the examiner is requested to provide opinion on the following questions: a) whether it is at least as likely as not that the Veteran manifested a chronic respiratory disorder during active military service from September 1970 to January 1978; and b) whether it is at least as likely as not that any currently manifested respiratory disorder results from an event during active service, to include the Veteran's probable exposures to dust, chemicals, fumes and potentially asbestos materials while performing carpentry work in a Structural Repair Shop? In providing these opinions, the examiner must specifically discuss the following: * the medical significance, if any, regarding the lack of use of respiratory protective equipment in service; * the medical significance, if any, of the Veteran's testimony of recurrent wheezing and phlegm symptoms since service; * the March 2009 opinion which states that chemicals and construction agent fumes may be an etiology for the current x-ray findings of "bilateral parenchymal scarring;" and * an explained rationale for each opinion discussing any applicable medical principles. 4. Thereafter, readjudicate the claim. If any benefit on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs