Citation Nr: 1323993 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-38 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for left varicocele. 2. Entitlement to service connection for periodontal disease. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a right hip disorder. 5. Entitlement to an initial compensable evaluation for residuals of a supraspinatus tendon tear of the left shoulder prior to August 2, 2012, and in excess of 10 percent from August 2, 2012. 6. Entitlement to an initial compensable evaluation for degenerative joint disease of the thoracolumbar spine prior to August 2, 2012, and in excess of 10 percent from August 2, 2012. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to January 2006. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In an August 2012 rating decision, the RO granted the Veteran's claim of entitlement to service connection for tinea pedis of the left foot. The Veteran has not disagreed with the assigned evaluation or effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (finding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, the matter has been resolved and is no longer in appellate status. The issues of entitlement to service connection for a left knee disorder and entitlement to service connection for a right hip disorder are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran's current left varicocele cannot be reasonably disassociated from his active military service. 2. In July 2010, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, that a withdrawal of his appeal was requested for the issue of entitlement to service connection for periodontal disease. 3. In February 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, that a withdrawal of his appeal was requested for the issues of entitlement to an initial compensable evaluation for residuals of a supraspinatus tendon tear of the left shoulder prior to August 2, 2012, and in excess of 10 percent from August 2, 2012. 4. In February 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, that a withdrawal of his appeal was requested for the issues of entitlement to an initial compensable evaluation for degenerative joint disease of the thoracolumbar spine prior to August 2, 2012, and in excess of 10 percent from August 2, 2012. CONCLUSIONS OF LAW 1. Left varicocele was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for periodontal disease have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (b), (c) (2012). 3. The criteria for withdrawal of the substantive appeal by the Veteran for the issues of entitlement to an initial compensable evaluation for residuals of a supraspinatus tendon tear of the left shoulder prior to August 2, 2012, and in excess of 10 percent from August 2, 2012, have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (b), (c) (2012). 4. The criteria for withdrawal of the substantive appeal by the Veteran for the issues of entitlement to an initial compensable evaluation for degenerative joint disease of the thoracolumbar spine prior to August 2, 2012, and in excess of 10 percent from August 2, 2012, have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (b), (c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection - Left Varicocele Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue of entitlement to service connection for a varicocele. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting such issue. Therefore, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that his current left varicocele had its onset during service. Specifically, during a February 2013 hearing before the Board, he testified that while serving as an instructor at the Air Assault School, he performed over 100 repels from helicopters, buildings, or mountains while wearing a Swiss seat, which constricted his groin area. He further testified that any twisting or hard falls while wearing such seat could have likely caused his current left varicocele disorder. In this regard, the Veteran's induction physical examination is not associated with the claims file. Two years subsequent to induction into service, the Veteran underwent an examination in August 1986, which was noted as being due to "lost records." The Veteran reported that he did not have any genitourinary disorders. The report of the medical examination is negative for a diagnosis of varicocele disorder. See 38 U.S.C.A. § 1111 (West 2002). Subsequent thereto, the Veteran's service treatment records indicate numerous diagnoses of a left varicocele, to include in 1989, 1995, and 2003. An August 2005 separation physical examination is negative for a diagnosis of a varicocele. Post-service records include the report of a November 2008 VA examination. The examiner noted that the Veteran's claims file contained a notation of a varicocele. Upon examination, the diagnosis was varicocele. The examiner opined that the Veteran's varicocele would have occurred regardless of his service, and might have predated service, although a "military nexus was noted." Thereafter, the same examiner conducted another VA examination in August 2012. Mild pain on palpation was found. The examiner opined that the Veteran's varicocele would have occurred regardless of his service, and might have predated service. The examiner further stated, that although a "military nexus was noted," the condition was not caused by service. The Board finds that the evidence of record supports a finding of service connection for left varicocele. Post-service VA examination reports show current diagnoses of a left varicocele in November 2008 and August 2012. 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). The VA examiner that conducted the November 2008 and August 2012 examinations offered opinions that the Veteran's current varicocele, although present in service, would have occurred regardless of his service and was not caused by service. However, this opinion begs the question as to whether a left varicocele disorder began while the Veteran was serving on active duty. Accordingly, these opinions are not probative to the issue at hand. Further, the examiner opined that the Veteran's current left varicocele "might" have predated service. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. Nieves -Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the examiner's opinions that his current left varicocele might have predated service are of no probative value. The evidence of record demonstrates that a left varicocele was initially diagnosed during service. The Veteran has testified that he had a left varicocele in service, and has continued to have the symptoms associated with such a disorder. The Veteran's statements are both competent and credible. Moreover, there is currently a diagnosis of a left varicocele. Accordingly, the Board finds that the evidence supports the Veteran's claim of entitlement to service connection for left varicocele Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. During a July 2010 hearing before a decision review officer, the Veteran withdrew the appeal for the issue of entitlement to service connection for periodontal disease. Similarly, during a February 2013 hearing before the Board, the Veteran withdrew the appeal for the issues of entitlement to an initial compensable evaluation for residuals of a supraspinatus tendon tear of the left shoulder prior to August 2, 2012, and in excess of 10 percent from August 2, 2012, and entitlement to an initial compensable evaluation for degenerative joint disease of the thoracolumbar spine prior to August 2, 2012, and in excess of 10 percent from August 2, 2012. Regarding such issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues on appeal and they are dismissed. ORDER Service connection for left varicocele is granted. The claim of entitlement to service connection for periodontal disease is dismissed. The claims for entitlement to an initial compensable evaluation for residuals of a supraspinatus tendon tear of the left shoulder prior to August 2, 2012, and in excess of 10 percent from August 2, 2012, is dismissed. The claims for entitlement to an initial compensable evaluation for degenerative joint disease of the thoracolumbar spine prior to August 2, 2012, and in excess of 10 percent from August 2, 2012, are dismissed. REMAND The Veteran contends that his current left knee and right hip disorders began in service. In this regard, during a February 2013 hearing before the Board, the Veteran testified that such disorders resulted from 21 years of active duty, which included several years of service as a member of the Old Guard Ceremonial Unit, whereas he was required to perform precision drill marching, as well as stand for long periods of time during ceremonies and military funerals. He further testified that his service included a few years as an instructor at the Air Assault School, which involved over 100 repels from helicopters, buildings, or mountains. The Veteran asserted that the years of marching and standing, as well as the trauma of over 100 repels caused his current left knee and right hip arthritis disorders. Service treatment records demonstrate the Veteran sought treatment for right hip pain in October 2000. At the time, he reported that he experienced right hip pain for the past three months; the assessment was right hip strain. The Veteran's August 2005 separation physical examination notes his complaints of swollen or painful joints and knee trouble. The report of medical examination includes a diagnosis of multiple joint pain must likely due to osteoarthritis. Post-service records include a VA examination report dated in October 2008. The Veteran reported that he continued to experience left knee and right hip pain since service. Examination of the left knee and right hip revealed slight limitation of motion. Although x-rays of the left knee and right hip were reportedly normal, actual reports of such findings are not associated with the claims file. The Board finds that the medical evidence of record is unclear as to whether the Veteran has a current left knee and/or right hip disorder. Therefore, the case must be remanded in order for the Veteran to be afforded another VA examination to determine whether he has a current left knee and/or right hip disorder, and if so, whether any diagnosed disorder had its onset in service, or is otherwise related to service. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims for entitlement to service connection for left knee and right hip disorders. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination to determine whether any left knee and/or right hip disorders found or previously diagnosed are related to his military service or to a service-connected disorder. The Veteran's claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests and studies must be accomplished, to include x-rays. Following a review of the evidence of record, a clinical examination, and with consideration of the Veteran's statements, the examiner must state whether any left knee disorder found or previously diagnosed, is related to the Veteran's active military service. In providing such opinion, the examiner must comment on the August 2005 separation physical examination, which notes the Veteran's complaint of knee trouble. The examiner must also state whether any right hip disorder found or previously diagnosed, is related to the Veteran's active military service. In providing such opinion, the examiner must comment on the October 2000 service treatment record which notes the Veteran's complaint of right hip pain for the past three months and an assessment of a right hip strain. The examiner must also comment on the August 2005 separation physical examination, which notes the Veteran's complaint of swollen or painful joints. The examiner must also provide an opinion as to whether any left knee disorder found or previously diagnosed, is due to or aggravated by a service-connected disorder. An additional opinion must also be provided as to whether any right hip disorder found or previously diagnosed, is due to or aggravated by a service-connected disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development deemed necessary, the RO must readjudicate the Veteran's claims on appeal. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs