Citation Nr: 1334664	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  97-32 022A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a testicle disability, to include epididymitis.

2.  Entitlement to an initial evaluation in excess of 50 percent for schizoaffective disorder from December 27, 1993 through February 1, 1998.

3.  Entitlement to an initial evaluation in excess of 70 percent for schizoaffective disorder from February 2, 1998 through September 7, 2009.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to February 2, 1998, and from October 26, 2005, to include under 38 C.F.R. § 4.16(c) as in effect prior to November 7, 1996.


REPRESENTATION

Appellant represented by:	Sandra E. Booth, Attorney at Law

ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active duty from December 1964 to October 1973.

This case originally came before the Board of Veterans' Appeals (Board) on appeal of September 2003 and May 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO).  In February 2011, the Board granted a 70 percent rating for schizoaffective disorder from February 2, 1998 through October 24, 2005; denied an initial evaluation in excess of 50 percent for schizoaffective disorder from December 27, 1993 through February 1, 1998; and denied an initial evaluation in excess of 70 percent for schizoaffective disorder from October 25, 2005 through September 7, 2009.  The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court), which, in a February 2013 Memorandum Decision, vacated and remanded these issues back to the Board because the Board's reasons and bases were considered inadequate.  

In August 2012, the Board found that new and material evidence had been received to reopen the claim for entitlement to service connection for a testicle disability, to include epididymitis, and remanded the reopened claim to the RO for a nexus opinion.  A VA examination with nexus opinion was obtained in September 2012.

As a current examination with nexus opinion has been added to the claims files in response to the Board remand, there has been substantial compliance with the August 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). 
The issues of entitlement to an initial evaluation in excess of 50 percent for schizoaffective disorder from December 27, 1993 through February 1, 1998, entitlement to an initial evaluation in excess of 70 percent for schizoaffective disorder from February 2, 1998 through September 7, 2009, and entitlement to a TDIU prior to February 2, 1998, and from October 26, 2005, to include under 38 C.F.R. § 4.16(c) as in effect prior to November 7, 1996, are REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran currently has a testicle disability, to include epididymitis, that was present in service or is otherwise related to service.


CONCLUSION OF LAW

A testicle disability, to include epididymitis, was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).  The regulations implementing VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  With regard to the service connection claim, the RO sent the Veteran a letter in February 2006, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection.  The February 2006 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility to obtain.  The Veteran was informed in a March 2006 letter of the factors for consideration in the assignment of a disability rating and/or effective date in the event of award of the benefit sought.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Veteran's service treatment records, and post service VA and private medical treatment records, have been obtained.  There is no indication of any outstanding relevant evidence for consideration.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  A VA medical examination with nexus opinion was conducted in September 2012.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the September 2012 VA examination with nexus opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims files and physical examination findings.  The September 2012 opinion considered all of the pertinent evidence of record, to include the Veteran's medical records and examination findings, and provided a rationale for the opinion stated.  There is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

The Veteran has been given ample opportunity to present evidence and argument in support of his service connection claim.  The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).  


Analysis of the Claim

The Veteran seeks service connection for a testicle disability, to include epididymitis.  Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§  1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).  

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

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.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when 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);
(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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and 
readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence 
submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The Veteran's service treatment reports do not reveal any complaints or clinical findings indicative of a testicular disorder; the Veteran's genitourinary system was normal on separation medical examination in July 1973.

Private treatment reports from October 1982 to September 1990 show that the Veteran had a left testicle mass in February 1987; the impression was rule out epididymal cyst, rule out neoplasm.  

Cleveland Avenue Medical Center records reveal complaints of intermittent left testicular pain for a "long time" in February 1988.  A history of epididymitis was reported in September 1990.

A swollen left testicle was noted in private treatment reports dated in August 1990.  

According to a May 1991 medical report from Urology Services of Columbus, the Veteran had undergone a lymph node biopsy of the right groin in 1979.  The impressions were infertility and phimosis.

It was reported on VA genitourinary examination in November 1994 that the testes and genitalia were normal, with no atrophy of either testicle.  The impression was left testicular pain of unknown etiology.

VA treatment records from June 2000 to September 2004 reveal a notation in June 2000 that the Veteran was treated for gonorrhea in 1966, with chronic testicular pain ever since; the assessment was questionable chronic epididymitis.  An eleven year history of chronic orchalgia was noted in September 2004.

The impressions on a January 2006 ultrasound of the scrotum from Ohio State University Medical Center included status post left orchiectomy; slightly enlarged right epididymitis, with no evidence of hyperemia, likely secondary to chronic inflammation; and small right varicocele, small right hydrocele.

In response to the August 2012 Board remand, a VA examination was conducted in September 2012.  After review of the claims files and examination of the Veteran, the examiner diagnosed chronic epididymitis, left testicle removed due to persistent pain, and erectile dysfunction.  The examiner concluded that the Veteran's chronic epididymitis, status post left orchiectomy, was less likely as not caused by or the result of his military service because there was no evidence of any pertinent disability in service, and there is no medical literature to support a finding that the disability is related to military service.  The examiner noted that the cause of chronic testicular pain or chronic epididymitis has not been determined.  

The above medical evidence does not include objective evidence showing that the Veteran currently has a testicle disability, to include epididymitis, related to service.  There is no evidence of a disability in service or for a number of years after service discharge.  Moreover, the recent nexus opinion in September 2012, which is based on a review of the medical evidence and examination of the Veteran, and which includes a rationale, is against the claim.  There is no nexus opinion in favor of the claim.  

The lay statements from the Veteran have been taken into consideration in adjudicating the issue on appeal.  The Veteran is competent to report his subjective symptoms of pain over the years.  However, he has not been shown to be competent to diagnose a testicular disability, including epididymitis, as having been present in service, or as etiologically related to service.  Such is a complex medical matter and the Veteran has not been shown to have had the requisite medical training to provide such diagnosis or nexus opinion.  As such, the weight of the most probative evidence as a whole, to include the negative service treatment records, and the negative September 2012 VA opinion, which was based on a review of the claims files and which contains a rationale, is against the claim.  

Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connection claim denied above, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a testicle disability, to include epididymitis, is denied.


REMAND

According to the Court's February 2013 Memorandum Decision, the Board erred in February 2011 in denying an initial rating in excess of 50 percent for schizoaffective disorder from December 27, 1993 through February 1, 1998 and in denying an initial rating in excess of 70 percent for schizoaffective disorder from February 2, 1998 through September 7, 2009, because the Board's statement of reasons or bases was inadequate.  It was noted that, with respect to the disability rating between 1993 and 1998, the Board failed to explain how it determined that a 1994 VA examination report outweighed two 1994 Minnesota Multiphasic Personality Inventory-2 test results.  It was also noted that the Board failed to evaluate the type and degree of the Veteran's symptoms and how they related to the rating criteria, in accordance with Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

The Veteran has contended that because no single medical opinion has addressed his psychiatric disability in light of his entire disability picture since his claim was filed in 1993, a medical opinion based on a review of all of his medical history is necessary.  The Board has concluded that a VA opinion on the severity of the Veteran's schizoaffective disorder during the periods in question, based on all of the evidence of record, is warranted.  The issue of entitlement to TDIU prior to February 2, 1998, and from October 26, 2005, to include under 38 C.F.R. § 4.16(c) as in effect prior to November 7, 1996, is inextricably intertwined with the increased rating issues being remanded and is also remanded for additional development.

The Board notes that effective November 7, 1996, during the pendency of this appeal, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating mental disorders.  61 Fed. Reg. 52695 (Oct. 8, 1996) (codified at 38 C.F.R. § 4.130).   

VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects.  VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003).  The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied.  VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000).


Accordingly, the case is REMANDED for the following actions:

1.  The RO will ask the Veteran to provide the names and addresses, as well as the dates of treatment, of all health care providers, both VA and non-VA, who have seen or treated him for psychiatric disability since December 1993.  After securing any necessary authorization, the RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured.  

If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence.  38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013).

2.  The RO will provide the Veteran VCAA notice related to a TDIU claim.

3.  Thereafter, the RO will schedule the Veteran for an examination to determine the effects of his 
service-connected psychiatric disability on his ability to secure or follow a substantially gainful occupation.  The claims folder, including a copy of this remand, and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed.  The examiner must specify the dates encompassed by the Virtual VA records that were reviewed.  Any necessary special studies or tests are to be accomplished.  The examiner must provide an opinion as to the following:

Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected schizoaffective disorder precluded him from securing and following a substantially gainful occupation consistent with his education and occupational experience at any time during the rating period on appeal from December 27, 1993 through February 1, 1998, and from October 25, 2005.  This opinion must be provided without consideration of his nonservice-connected disabilities or his age.  A complete rationale for all opinions must be provided.  The Veteran is to be notified that he must report for the examination and that failure to report may result in the denial of his claim.  38 C.F.R. § 3.655 (2013).

4.  After the above have been completed, the RO will 
re-adjudicate the Veteran's claims for entitlement to an initial rating in excess of 50 percent for schizoaffective disorder from December 27, 1993 through February 1, 1998; entitlement to an initial rating in excess of 70 percent for schizoaffective disorder from February 2, 1998 through September 7, 2009, including with consideration of the applicable rating criteria in effect before November 7, 1996 and the applicable rating criteria effective November 7, 1996, in accordance with VAOPGCPREC 7-03 and VAOPGCPREC 3-00; and entitlement to a TDIU, to include consideration of 38 C.F.R. § 4.16(c) (as in effect prior to November 7, 1996) and 38 C.F.R. § 4.16(a) (2013).  If any benefit sought on appeal remains denied, the Veteran will be provided a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations as in effect prior to, and from, November 7, 1996, considered pertinent to the issues currently on appeal.  An appropriate period of time should be allowed for response.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The purpose of this REMAND is to comply with all due process considerations.  No inference should be drawn regarding the final disposition of this claim as a result of this action.

The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts.  It has been held that compliance by the Board or the RO is neither optional nor discretionary.  Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2012).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs