Citation Nr: 1329799 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 12-20 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for back disability with lumbago and chronic back pain. 2. Entitlement to service connection for epididymitis (also claimed as burning feeling in testicles). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active military service from July 1979 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the benefits sought. In June 2013 the Board remanded the issues of entitlement to service connection for back disability with lumbago and chronic pain, epididymitis (also claimed as burning feeling in testicles), and depression and anxiety disorder (also claimed as short and long term memory loss for additional development. Subsequently, by rating action in July 2013 service connection for adjustment disorder with mixed anxiety and depression was granted with an evaluation of 30 percent effective June 28, 2011. This is a full grant of the claim for an acquired psychiatric disorder, how so ever described. The only remaining issues before the Board are as shown on the title page. 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). FINDINGS OF FACT 1. The Veteran does not have a back disability with lumbago and chronic back pain that is the result of a disease or injury in active duty service. 2. The Veteran does not have epididymitis (also claimed as burning feeling in testicles) that is the result of a disease or injury in active duty service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a back disability with lumbago and chronic back pain have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for establishing service connection for epididymitis (also claimed as burning feeling in testicles) have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist The Veterans Claims Assistance Act (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 & Supp. 2012)) redefined VA's duty to assist the appellant 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). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In November and December 2010 and July 2011 letters, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how the VA determines a disability rating and assigns an effective date, and the type of evidence which impacts such. The case was last readjudicated in July 2012. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). The claims folder contains the Veteran's service personnel and treatment records, as well as all identified and available post-service treatment records from the Alexandria VA Medical Center (VAMC) dated from April 1999 to July 2012, and Social Security Administration (SSA) disability benefits records have been associated with the claims file. A review of Virtual VA does not reveal any additional documents pertinent to the present appeal. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. §5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. Legal Criteria 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. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) 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) 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 curium, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A.1154 (a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). III. Analysis a. Back disability with lumbago and chronic back pain. On his July 2012 Form 9, in regards to his claimed disability the Veteran generally stated that he was treated for a back disability in service and has continued to have problems. Here, the Veteran's service treatment records (STRs), including his June 1979 entrance and March 1981 separation examinations, are negative for any complaints, treatment, or diagnoses related to a lumbar back disability. A clinical evaluation of the lumbar back at separation was normal. Post service the first documentation of any lumbar back injury was in June 1996, 15 years after service. A Social Security Administration (SSA) determination received subsequent to the Board's June 2013 remand reveals that the Veteran was granted a pension from June 1996 for discogenic and degenerative disc disease (DDD) of the lower back. He suffered an on the job lower back injury in June 1996 while lifting a piano during work as a mover. He experienced immediate shock type pain in the back. He was seen in the emergency room and was treated by a chiropractor. He was later seen by an orthopedist. A September 1998 SSA orthopedic evaluation included X-rays which were normal. A diagnosis of chronic lumbar sprain with radiation to the left leg was made. A July 2007 SSA orthopedic evaluation included X-rays which revealed marked decreased L5/S1 disc space. An MRI revealed DDD L5/S1 with possible disc extrusion. The Board acknowledges that the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, in this case, the Veteran has not provided any lay evidence of pertinent symptomatology. For the most part, he has just provided conclusory statements indicating that his claimed lumbar back sprain disability was related to service or that he was treated for his claimed disability in service. There is no lay or medical evidence of earlier post-service symptoms or flare-ups of lumbar back problems until the June 1996 work related back injury. There are no records of any chronic lumbar back sprain post service until the June 1996 accident, 15 years after service separation. The absence of any evidence of a lumbar spine related disability for 15 years after service weighs the evidence against a finding that the Veteran's lumbar spine disability was present in service or in the year or years immediately after service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no other medical or lay evidence of a relationship between the Veteran's current lumbar spine disability and service, and neither the Veteran nor his representative has alluded to the existence of any such evidence. Neither the Veteran nor his representative have offered any explanation as to why they believe the current lumbar spine disability was related to service and the record contains no indications that the lumbar spine disability was related to service. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for a lumbar spine disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57 b. Epididymitis (also claimed as burning feeling in testicles). On his July 2012 Form 9, in regards to his claimed disability the Veteran generally stated that he was treated for the issue in service and has continued to have problems. Here, the Veteran's June 1979 entrance and March 1981 separation examination are negative for any complaints, treatment, or diagnoses related to epididymitis. STRS do not refer to any testicular injury or trauma during service. However, the Veteran was seen on multiple occasions between November and December 1980 for complaints of recurring testicular swelling and pain. He was treated for orchitis and admitted for IV antibiotics treatment. The diagnoses were resolving acute epididymitis with testicular swelling; orchitis, epididymitis and possible prostatitis. There were no subsequent STRS indicating ongoing testicular complaints during the remainder of service. Post service treatment records do not reveal any treatment or diagnosis of any testicular complaints. In an August 2011 VA reproductive system examination the Veteran reported trauma to his testicles when his body was jarred when a fellow soldier dropped a heavy metal bar near him. Currently when he has swelling of his testicles he goes to the emergency room and gets medication which relieves his pain and swelling. The examiner noted a normal epididymis/spermatic cord/scrotum examination. There were no significant effects of his general occupation or usual daily activities. He occasionally had flare ups of swelling and pain and saw a physician for medication and the condition improved. The examiner did not provide an opinion as to whether or not the Veteran's recurrent epididymitis, which the examiner noted was not currently symptomatic, had its onset in service, or was otherwise related to service. In a July 2013 VA reproductive system examination the Veteran reported injuring himself while lifting a heavy tow bar with another soldier who dropped his side. The next day his testicles were swollen. The diagnosis was acute epididymitis. The examiner noted that the Veteran's lay testimony was consistent with his assertions that he was hospitalized in 1980, while on active military duty with the diagnosis of acute epididymitis. Acute epididymitis is caused by either a viral or bacterial infection. The Veteran was hospitalized and received IV antibiotics for 'acute epididymitis'. The records also indicate he was given another round of antibiotics post hospitalization for ongoing left testicular pain or orchitis - possible prostatitis but this diagnosis was not confirmed. The separation examination in 1981 was void of ongoing complaints of left testicular pain. Examination was noted to be normal. The examination revealed no objective evidence of left epididymitis. A urologist examined the Veteran noting that the left and right epididymis were normal. An ultrasound of the scrotum was performed which was essentially normal. The testicles were normal in size and echotexture. There were no focal lesions. Visualized segments of the epididymis were grossly intact. The examiner opined that, "After interview, physical examination, review of imaging, discussion with a urologist and review of the C-file, it is this examiner's opinion that Veteran has no current diagnosable chronic testicular disorder, including epididymitis that was incurred during his military career." The Board acknowledges that the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, in this case, the Veteran has not provided any lay evidence of pertinent symptomatology. For the most part, he has just provided conclusory statements indicating that his claimed disability was related to service or that he was treated for his claimed disability in service. There is no lay or medical evidence of earlier post-service symptoms or flare-ups of epididymitis related problems post service. There are no records of any chronic testicular condition post service. The absence of any evidence of a chronic testicular disorder, including epididymitis after service weighs the evidence against a finding that the Veteran's disability was present in the year or years immediately after service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). However, service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim). The record does not contain a diagnosis of any chronic testicular disorder, including epididymitis. Although the August 2011 examiner referred to recurrent epididymitis, he also noted that it was currently asymptomatic, and the subsequent examiner went further, noting that there actually was no present disorder. In other words, the August 2011 examiner based his opinion on the Veteran's self report, but the objective clinical evidence of records after service does not demonstrate the presence of any chronic testicular disorder, including epididymitis. Although laypersons are competent to describe their symptoms, and in some circumstances to offer a competent diagnosis of disability, the Veteran has not done so. The evidence as a whole shows that the Veteran does not have a chronic testicular disorder, including epididymitis. Therefore, service connection is not warranted for this disability. (CONTINUED ON THE NEXT PAGE) ORDER Service connection for back disability with lumbago and chronic back pain is denied. Service connection for epididymitis (also claimed as burning feeling in testicles) is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs