Citation Nr: 1315055 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 05-35 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for epididymitis. 2. Entitlement to service connection for epididymal/scrotal cyst. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to January 1984. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). This matter was previously before the Board, most recently in September 2012, when the issues remaining on appeal were remanded for additional development. In light of the fact that the Board is granting the full benefit sought at this time with regard to the issues remaining on appeal, there is no need to consider whether there has been substantial compliance with prior remand directives. The Veteran testified at a Travel Board hearing in September 2008, and a transcript of this hearing is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Epididymitis was incurred in active duty service. 2. A disability manifesting in epididymal/scrotal cyst was incurred in active duty service. CONCLUSIONS OF LAW 1. Epididymitis was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Disability manifesting in epididymal/scrotal cyst was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis This appeal involves claims of entitlement to service connection for disabilities of the epididymal and scrotal areas. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Where the record contains both positive and negative evidence, it is the responsibility of the Board to weigh the credibility and probative value of the medical opinions, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to describe symptoms that he or she experienced in service or at any time after service when the symptoms he or she perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he or she is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board notes that it has reviewed all of the evidence in the Veteran's claims file (including in "Virtual VA," VA's electronic database storage) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's service treatment records contain evidence of symptomatic manifestations of epididymitis and of scrotal cyst during service. In this regard, the Board observes that pertinent treatment reports from service include those dated in February 1975, July 1980, November 1980, December 1980, March 1981, August 1981, April 1982, and March 1983. The Veteran was diagnosed with epididymitis during service, with manifestations of pertinent epididymal and scrotal abnormalities on various occasions over the period from 1975 to 1983. A broad review of the service treatment records reveals that when these symptoms occurred, they were not described as part of a chronic ongoing pathology, and the Board notes that the November 1983 service separation examination report contains no indication of epididymitis or scrotal symptoms at that time. The Board finds that the service treatment records depict a pattern of symptomatology that was sporadic, with recurrent manifestations of epididymitis and scrotal symptoms including swelling and palpable mass. The Veteran's September 2008 Board hearing testimony included the Veteran's account of having been diagnosed with epididymitis and being told by a VA doctor that the claimed disability "would never go away." Relatively recent post-service VA medical records contain reports, including dated in March 2007 and April 2010, showing treatment for the related disabilities of "epididymitis" and "eppidydimal[sic] cyst." VA medical records from recent years contain several indications of epididymal problems and left testicle symptoms with objective findings and medical treatment. The fact that the Veteran has, during the course of this appeal, had potentially pertinent epididymal pathology decades after having similar epididymal problems during service raises significant etiological questions which the Board has sought to have addressed by competent medical opinions. The Board's March 2011 remand found that a VA examination was necessary to develop a competent medical opinion addressing the nature and etiology of the Veteran's epididymal pathologies, to include a determination as to whether he has any chronic epididymal pathology that is etiologically linked to the documented in-service epididymal symptoms or is otherwise caused or permanently aggravated during service. Unfortunately, the August 2011 VA examination report addressing the epididymitis and epididymal cyst issues does not adequately address the medical questions at the core of these appellate issues. The August 2011 VA examination report addressing these matters notes that the Veteran described symptoms that over time have been "Intermittent w/ remissions," and that "the tenderness has improved since he was given PO steroids approx 1-2 years ago." The August 2011 VA examination report ultimately concludes that the Veteran's claimed epididymitis and cyst are not related to the symptoms during military service because there is "[n]o documented clinical evidence of Epididymitis" and "[n]o documented evidence of Cyst of the Scrotum." The August 2011 VA examination report's rationale additionally states that following service "[t]here is only one documented episode of diagnosis of Epididymitis dated 3/25/07." The August 2011 VA examination report's rationale is problematic for multiple reasons. First, the absence of findings of epididymitis or of scrotal cyst at the time of the examination does not in and of itself preclude the possibility that the Veteran has had a chronic pathology involving recurrence and remission of symptoms since service. The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Significantly, the August 2011 VA examination report's own summary of pertinent evidence refers to a March 2007 VA emergency room note describing "chronic epidydimitis [sic], here with pain and swelling in left testicle. Has waxed and waned for some time." The nature of the claimed disabilities at issue is such that the manifestations may experience periods of exacerbation and remission. To the extent that the August 2011 VA examination report's rationale appears to rely upon a current absence of symptoms previously documented during the pendency of this claim, the rationale does not offer an adequate etiology opinion addressing whether any claimed left testicle pathology may be a chronic disability related to military service. The August 2011 VA examination report does not explain or make apparent any basis for the Board to conclude that the absence of symptoms in August 2011 weighs against finding that the Veteran's symptoms at other times during the pendency of the appeal were not likely related to apparently similar symptoms during service. Additionally, the August 2011 VA examination report's rationale does not adequately address, and does not clearly contemplate, recent instances of the Veteran receiving medical treatment for a medically detected cyst or lesion of the left testicle and epididymal tenderness. The August 2011 VA examination report's own summary of the pertinent evidence also refers to documentation of the Veteran receiving treatment in May 2009 for a cyst of the left testicle, assessed by medical professionals as a "left testicular mass" and "lesion lt testicle." There were noted concerns regarding the possibility that the lesion may be cancerous. The August 2011 VA examination report's summary of evidence also includes reference to October 2009, April 2010, and November 2010 urology consultations concerning the left testicular mass which was shown on ultrasound. The April 2010 entry (as transcribed into the August 2011 VA examination report) refers specifically to the left testicle having "a eppidydimal [sic] cyst, with non-palpable mass." The August 2011 VA examination report's summary of the evidence also refers to a VA urology consultation from the preceding day including notation of a "tender left epididymus." The indications of the medical evidence summarized in the August 2011 VA examination report do not appear to be adequately addressed by the rationale offered for the VA examination report's conclusion. For instance, the Board can find no explanation reconciling the acknowledged medical findings of a cyst or lesion of the left testicle with the VA examiner's rationale stating that there is "[n]o documented evidence of Cyst of the Scrotum." In light of the inadequacy of the August 2011 VA examination report, the Board's September 2012 remand directed that a new VA examination addressing the pertinent etiology questions be developed. Unfortunately, the Board now finds that the resulting October 2012 VA examination report is similarly inadequate. The new October 2012 VA examination report appears to find no active disability at the time of the examination. (The report notes: "No active epididymis" and "No scrotum or testecl [sic] cyst per ultrosound [sic]," which the Board interprets as indicating that no diagnosis of epididymitis or cyst was found at the time of examination.) However, the absence of these disabilities at the time of the examination does not resolve the claims of entitlement to service connection when the Veteran is shown to have had epididymitis and a scrotal cyst during the pendency of this appeal. Consideration of these claims continues to require adequate medical opinions addressing the etiology of the claimed disabilities. The October 2012 VA examiner notes that the Veteran had "intermittent bilateral testicular/scrotal pain and numbness L>R, in [1980] with associated left testicular tender[ness]. He was also found with scrotal mass at the time and was hospitalized in the military hospital for 3 months while stationed in Germany." The examiner later acknowledged that the service treatment records show other "episodes of transient groin/testicle pain / swelling due to recurrent epididymitis." The examiner's inspection of the Veteran found "mild prominent left epididymis." After the October 2012 VA examiner acknowledged that the Veteran had an in-service hospitalization for epididymitis and was additionally treated on several documented occasions for "recurrent epididymitis," he then noted that the separation examination showed no sequella or residuals. The examiner then stated that "available SMRs [were] silent for testicular or scrotum mass or cyst." The Board finds the examiner's comment to be self-contradictory and to contradict the facts shown in the evidence of record. The service treatment records show instances of scrotal masses being observed (including a February 1975 notation of a papule on the right testicle and a December 1980 notation of a "kernel" on the scrotum); the October 2012 examiner himself acknowledged the documentation of in-service scrotal masses earlier in the same VA examination report. Finally, the October 2012 VA examiner notes that the Veteran's recent left testicular lesion was first shown in 2009. The examiner finds that the left testicular lesion "is not related to military service." The examiner does not clearly discuss whether any post-service epididymitis is otherwise related to in-service epididymitis; the Board has considered that the examiner may believe that the post-service symptoms do not warrant a diagnosis of epididymitis, but this is not explained in the medical opinion. The Board finds that latest October 2012 VA examination report to add confusion to the record without clearly explaining a persuasive rationale for conclusions addressing the critical medical questions in this case. The October 2012 VA examiner notes actually observing that the left epididymis is currently mildly prominent, acknowledges that the Veteran had several instances of recurrent epididymitis during service, acknowledges that the Veteran had some observed scrotal masses during service, but then finds (self-contradictorily) that there were no scrotal masses shown during service. The examiner's discussion does not persuasively explain his conclusion that the recent left testicle lesion is unrelated to service. The examiner only cites the fact that the separation examination report showed no residuals of prior epididymitis. The October 2012 VA examiner's incomplete response to the questions concerning epididymitis is not accompanied by any clear indication of a finding that the Veteran has not had epididymitis during the pendency of this appeal; VA treatment records during the pendency of this appeal indicate a diagnosis of epididymitis (in March 2007) and the October 2012 VA examination report itself indicates an objective finding of a "prominent" epididymis. The Board finds that the evidence of record continues to lack any competent medical opinion which persuasively explains a medical basis for concluding that the post-service epididymitis and epididymal/scrotal cyst findings are not etiologically related to military service. This case has already been remanded multiple times in an effort to obtain a clear and adequate medical opinion addressing the critical medical questions in this appeal. In light of the difficulty encountered in obtaining an adequate and persuasive medical opinion in this matter, and in the interest of avoiding unnecessary further delay to the Veteran awaiting a decision in this appeal, the Board has given careful consideration to whether the evidence in this case may permit a grant of the benefits sought with resolution of any reasonable doubt resulting from the development to date. The Board finds that service connection for the disabilities remaining on appeal is warranted. The Board notes that the evidence of record establishes that the Veteran's military service involved a number of documented episodes of epididymal and scrotal symptom complaints objectively observed and evaluated by medical professionals. In-service treatment included multiple notations of a diagnosis of epididymitis with various manners of epididymal and scrotal symptoms, including observed swelling and masses, at various times over several years of service. The Board thus views the service treatment records as showing a pattern of recurring epididymal/scrotal symptoms associated with a diagnosis of epididymitis which were sporadic rather than constantly active. The Veteran has presented competent lay testimony describing his recollection of a pattern of pertinent symptoms continuing sporadically following service through the present time; the Board finds no evidence to contradict nor any other compelling reason to doubt the Veteran's competent testimony in this regard. The post-service medical records establishes that the Veteran has been recently diagnosed with epididymitis and has been objectively confirmed to have a scrotal mass in the area of his left testicle characterized as a cyst. The current symptoms and associated medical diagnoses are sufficiently similar to those shown during military service that the only significant barrier to granting service connection is the fact that there is no clear resolution to the question of whether the pathology shown during service was a chronic pathology of a nature that would persist for such a term of time, or an acute pathology of a nature that resolves without any medical connection to future occurrences of similar symptoms. The medical opinions developed in this case to address the matter provide no persuasive medical opinion leading the Board to conclude that the post-service pattern of epididymitis and mass/cyst symptoms is medically distinct from the in-service pattern of epididymitis and mass/cyst symptoms. Although a medical nexus has not been clearly established, the Board finds that the available evidence reasonably supports finding that the Veteran has experienced a long-term pattern of non-constant recurring epididymitis and mass/cyst symptoms that had onset during his military service and have continued to recur sporadically to the present time. Resolving reasonable doubt in the Veteran's favor, the Board finds that the current epididymitis and mass/cyst symptoms are related to the epididymitis and mass/cyst symptoms shown during service. There is no persuasive medical evidence contradicting the finding that the Veteran's current epididymitis and mass/cyst symptoms are related to the similar diagnosis and findings shown sporadically during service. The Board finds that the evidence as it stands is at least in equipoise on the question of entitlement to service connection for these disabilities. As such, resolving reasonable doubt in the Veteran's favor, entitlement to service connection for epididymitis and for a disability manifesting in epididymal/scrotal cyst is therefore warranted. 38 U.S.C.A. § 5107(b). In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board notes that the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date in February 2009. At any rate, the Veteran will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grants of service connection. ORDER Service connection for epididymitis is warranted. Service connection for epididymal/scrotal cyst is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs