Citation Nr: 1318062 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-42 393 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Whether new and material evidence has been submitted to reopen the claim of service connection for left testicle orchiectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision by the RO that declined to reopen the claim of service connection for left testicle orchiectomy. The Veteran perfected the appeal. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. In an April 2007 decision, the Board denied the Veteran's claim of service connection for left testicle orchiectomy; the Veteran did not file a timely appeal. 2. The Veteran has not presented evidence that relates to an unestablished fact necessary to substantiate the claim or raises a reasonable possibility of substantiating the claim of service connection for left testicle orchiectomy. CONCLUSIONS OF LAW 1. The April 2007 decision of the Board denying service connection for left testicle orchiectomy is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. New and material evidence has not been received to reopen the claim of service connection for left testicle orchiectomy. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1100, 20.1104, 20.1105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice is commonly referred to VCCA notice as it came out of legislation titled the Veterans Claims Assistance Act of 2000 (VCAA). (Codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the RO sent the Veteran a letter dated July 2008 that complied with statutory notice requirements. Therein, the RO notified the Veteran of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. The letter also notified the Veteran of the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Once a claim is reopened, VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). The Board recognizes that the Veteran has not been afforded a VA examination in connection with this present underlying issue. However, an examination is not necessary if new and material evidence is not received. 38 C.F.R. § 3.159(c)(4)(iii). Such is the case here. The Veteran was afforded a videoconference hearing with the Board in January 2007 before a Veterans Law Judge (VLJ) who denied the claim in the April 2007 decision. This VLJ is no longer with the Board. Thus, the Veteran was provided with the opportunity, should he desire, to be afforded another hearing in connection with his current claim. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.707 (2012). However, on his Substantive Appeal, VA Form 9, the Veteran declined the opportunity for a hearing. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Reopening a Previously Denied Claim Generally, VA decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether there is new and material evidence is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Analysis The Veteran contends he is entitled to service connection for a left testicular disorder which was aggravated during basic training, requiring a left testicle orchiectomy during service and resulting chronic post-operative residuals . Here, the Veteran's claim of service connection for left testicle orchiectomy was initially denied by the RO in a June 2005 rating decision. The Veteran perfected an appeal of this decision, and his claim was denied by the Board in a decision promulgated in April 2007. When the Veteran's claim of service connection was denied by the Board in April 2007, the record contained his service treatment records, private medical records, and the Veteran's testimony at a hearing held at the RO in October 2005 as well as his testimony at a hearing before the Board in January 2007. As a preliminary matter, the Board found that a presumption of soundness does not apply in this case. The Veteran's pre-induction examination noted a prior history of undescended left testicle with orchopexy; and the Veteran reported that he had been born with the undescended left testicular and continued to have trouble with it after the orchopexy procedure at age 11. Thus, the Veteran's genitourinary system was not sound at time of enlistment. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303. The record is clear that the Veteran's preexisting left testicular disorder became symptomatic only two weeks into basic training, resulting in a routine left orchiectomy to resect the atrophied left testicle which was the cause of his pain. The Veteran testified that he completed his two-year tour of duty in the Army following the orchiectomy, although his left testicular area continued to be painful and extremely sensitive. He stated that he did not report these post-surgical symptoms because he believed it to be a normal occurrence following surgery. The record confirms that the Veteran complained of pain and tenderness in the months immediately following the April 1968 procedure and was placed on a limited profile until August 1968. The Board observes that the Veteran had uneventful surgery and normal post-operative recovery. Although the Veteran continued to complain of some pain and discomfort following surgery, contemporaneous examinations at the time failed to result in the identification of any objective abnormality or pathology to support the veteran's subjective complaints of pain and discomfort. The records reflect that he was only diagnosed with post-surgical orchiectomy pain. The Veteran was able to complete his ordinary enlistment of two years. In addition, the May 1970 separation examination noted no sequelae following the removal of the left testicle. Based on this evidence, the Board denied the Veteran's claim on the basis that preponderance of the evidence was against any finding that the Veteran's routine left testicular orchiectomy during service resulted in any permanent increase in symptoms or underlying disability beyond the ordinary progress of the disorder and related surgical treatment. Despite the Veteran's reports of issues with his left testicle prior to service and complaints of pain in service prior to the surgery (and following the surgery), the objective medical evidence in the service treatment records failed to indicate any significant postoperative residuals or identifiable pathology that would support a finding of service aggravation of the preexisting atrophied left testicle. Rather, the evidence showed that the in-service surgery removed the left testicle so that the Veteran could complete his period of service. After the normal post-operative recovery period, the service treatment records made no reference to left testicular disability. Furthermore ,the Board found that there was no probative evidence at any time from the Veteran's service separation up until present day that would indicate that the Veteran had any identifiable residuals from the left testicular orchiectomy, which could form the basis for an award of service connection for the residuals thereof on an aggravation theory. The Board's April 2007 decision is final as the Veteran did not file an appeal. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1100 (2012). As explained, the Veteran's claim of service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted (i.e., since April 2007) raises a reasonable possibility of substantiating the Veteran's claim. The additional material submitted by the Veteran since the April 2007 Board decision included his petition to reopen in June 2008 when he averred that the treatment and removal of his left testicle during service was proof of aggravation beyond normal progression. In his statement construed by the RO as his Notice of Disagreement in January 2009, the Veteran indicated that he was in good health prior to induction into service and reiterated the point that the removal of his left testicle had occurred during service and that he had been suffering from the residuals thereof for the past 42 years. In his Substantive Appeal in October 2009, the Veteran reiterated that he had suffered both physically and emotionally as a result of his in-service orchiectomy and that the problems had continuously impacted the quality of his life. Significantly, the Veteran has not submitted any new medical evidence pertaining to his claim. Upon review, the evidence now associated with the Veteran's claims file following the April 2007 decision of the Board does not relate to an unestablished fact necessary to substantiate the claim. The Veteran's lay assertions regarding his in-service operation and residuals thereof have already been considered, as the Board in its April 2007 decision considered the claim under the aggravation theory (due to the fact that the presumption of soundness did not apply in this case as the Veteran's pre-induction examination noted a prior history of undescended left testicle with orchopexy). Thus, these assertions are deemed to be cumulative in nature. The Veteran has not submitted any probative evidence demonstrating that his in-service orchiectomy resulted in any permanent increase in symptoms or underlying disability beyond the ordinary progress of the disorder. Also, the Veteran has submitted no probative evidence that would suggest that his residuals of left testicle orchiectomy are due to disease or injury that was aggravated by active service. The newly received evidence does not raise a reasonable possibility of substantiating the claim. Thus, no material evidence has been submitted. Accordingly, the Board finds that new and material evidence sufficient to reopen the claim of service connection for left testicle orchiectomy has not been presented. ORDER As new and material evidence has not been received to reopen the claim of service connection for left testicle orchiectomy , the appeal to this extent is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs