Citation Nr: 1328095 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-38 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a left varicocele. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from April 1956 to October 1956 and October 1960 to October 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In May 2013, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. FINDING OF FACT A left varicocele clearly and unmistakably existed prior to service and was not aggravated by service. CONCLUSION OF LAW Service connection for a left varicocele is not established. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (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, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by a letter sent to the Veteran in May 2013 that fully addressed the entire notice element. The letter informed him of what evidence was required to substantiate his claim and of his and the VA's respective duties for obtaining evidence. In any event, in his statements and testimony, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claims. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). The Veteran's claim was subsequently adjudicated in a July 2013 Supplemental Statement of the Case (SSOC). There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in May 2013, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment and hospitalization records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The regional office has obtained service treatment records, private treatment records, and VA medical examinations and opinions pertinent to the issues on appeal. Virtual VA records have been reviewed. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claims. The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to Service Connection for a Left Varicocele The Veteran seeks entitlement to service connection for a left varicocele. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). Because a varicocele is not specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is not for application in the Veteran's claim of service connection. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). 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). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether the Veteran's disability is related to service, the Board will first address whether the presumption of soundness attaches in this instance and, if so, whether it has been rebutted by clear and unmistakable evidence. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled into service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. 1111; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability of which the Veteran later complains. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. See VAOPGCPREC 3-03. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" pre-existing condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one for service connection. Service treatment records were reviewed. The Veteran's entrance examination from January 1956 did not note any varicocele; similarly, his separation examination from September 1956 did not note any varicocele. For the Veteran's second period of service, his entrance examination from October 1960 noted a small varicocele of the left testicle, not disqualifying. There were no complaints or treatments for the left varicocele during service. The Veteran's separation examination from July 1962 again noted a small, left varicocele that was asymptomatic, not in the line of duty (L.D.) and existed prior to service (EPTS). Based on the totality of the evidence, the Board finds that the evidence clearly and unmistakably favors a conclusion that the Veteran had a pre-existing right left varicocele at the time of his entry into active military service. 38 C.F.R. § 3.304(b). Having found clear and unmistakable evidence of a pre-existing disability, the next inquiry is whether there is clear and unmistakable evidence that the disability was not aggravated during service. VAOPGCPREC 3-03. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the pre-existing condition. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304(b), 3.306(b). If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one for service connection. Service records do not indicate any additional complaints or symptoms of the left varicocele during service. Post-service records were also reviewed. Records indicate the Veteran complained of left scrotal swelling in June 1977. He underwent a varicocelectomy in June 1977, with no complications. See m11 1994 letter. The Veteran was afforded a VA examination in July 2013. He reported he was diagnosed during his induction examination, but that he did not feel any discomfort at the time. He denied having left testicular pain or any related complaints during active service. The Veteran stated that in 1976 he started noticing left testicular enlargement and discomfort, for which he sought treatment with a private urologist and underwent surgery. He denied recurrence of the left testicular varicocele. Examination was normal. After reviewing the claims file, the examiner opined that the Veteran's left varicocele clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner explained that recorded evidence shows a left varicocele was a pre-existing, asymptomatic condition diagnosed during the induction examination. The examiner noted that there was no recorded evidence of complaints related to the varicocele during service. Additionally, a VA examination in July 1965 was silent for complaints related to the left varicocele. The Veteran indicated that he did not experience symptoms until approximately 14 years after discharge from service. Therefore, the examiner opined that there was no evidence of aggravation and the Veteran's left varicocele had no relationship to the Veteran's time in service. The Veteran asserts that his left varicocele was aggravated during service. See November 2009 notice of disagreement. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the medical evidence indicates that the Veteran's time in service clearly and unmistakably did not aggravate the Veteran's right elbow. There was no indication that he suffered an additional injury during service or that he suffered from symptoms at that time. In fact, the Veteran's separation examination from July 1962 indicated that the left varicocele was asymptomatic. Furthermore, the July 2013 VA examiner opined that the Veteran's time in service clearly and unmistakably did not aggravate the Veteran's left varicocele. The only evidence of record supporting the Veteran's claim is his own opinion that his pre-existing left varicocele was aggravated during service. In this regard, the Veteran is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau, supra ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.") However, the Veteran is not competent in this instance to opine that his pre-existing left varicocele was aggravated during service, as that is a complex medical question that requires medical expertise and training, including knowledge of the etiology and progression of disorder and correlation with past medical records and reported history. The Veteran's left varicocele is not a simple medical condition and as a layperson, the Veteran is not qualified through education, training, or experience to provide an opinion on whether such disorder was aggravated during service. The question of aggravation of the underlying condition would not be subject to lay observation, as contrasted with the situations contemplated by Jandreau and Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran's lay opinion on aggravation is not competent evidence and cannot be considered as evidence favorable to the claim. Even if any weight was afforded to the Veteran's lay opinion, the Board gives greater probative value to the medical opinion of a skilled clinical professional, such as the examiner from the July 2013 VA examination, than to the contentions of the Veteran. In light of the above, the Veteran's left varicocele symptomatology increased in severity many years after active service, and the Board finds that the evidence of record clearly and unmistakably shows that his left varicocele, which existed prior to service, was not chronically worsened during service. It is pertinent to note that temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to constitute "aggravation in service" unless the underlying condition, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). The Board observes that it is not necessary to address the issue of aggravation under the provisions of 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(b). This statue and regulation do not apply to this case because the Board has determined under 38 U.S.C.A. § 1111 that the evidence clearly and unmistakably demonstrates that the Veteran's pre-existing left varicocele was not aggravated by active service. See VAOPGCPREC 3-2003. For the reasons discussed above, the Board finds that the Veteran's left varicocele clearly and unmistakably pre-existed active service and clearly and unmistakably was not aggravated during active service. Accordingly, service connection for a left varicocele is not warranted. ORDER Entitlement to service connection for a left varicocele is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs