Citation Nr: 1335229 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-05 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right groin condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from March 1979 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2009, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing at the RO. A transcript of the hearing is currently of record. In September 2009, December 2012, and June 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. This appeal was processed using the Veterans Benefits Management System. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The weight of competent and credible lay and medical evidence is that the Veteran does not have a chronic right, left, or bilateral testicular or scrotal disease or residuals of an injury. CONCLUSION OF LAW The criteria for service connection for a right groin condition are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, an error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In October 2005, the RO provided a notice that included three of the five elements for substantiating a claim for service connection but did not advise the Veteran of the method for assigning a rating and effective date. The notice did explain the Veteran's and VA's respective responsibilities to obtain relevant evidence. After the initial decision, in January 2007 the RO provided an additional notice that included the method for assigning a rating and effective date followed by readjudication in a January 2007 statement of the case and supplemental statements of the case in July 2011, March 2013, and June 2013 with opportunities for the Veteran to respond. Therefore, the notice requirements have been satisfied. The Board also concludes VA's duty to assist has been satisfied. Relevant VA, Social Security Administration, and identified private medical records have been requested, and all but one provider's records have been associated with the claims file. During a May 2009 hearing, the Veteran stated that he had received treatment for a groin/testicle disorder by a private physician in Massachusetts for 14 years starting in 1985. He acknowledged that the physician was no longer in practice at the office where he received the care. In February 2013, the Appeals Management Center (AMC) initiated two requests to the physician at the address provided by the Veteran. No response was received, and the Veteran was advised in March 2013. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran underwent VA examinations in March 2006 and July 2011 with an addendum report and opinion in December 2012. The results have been included in the claims file. The examinations and opinion involved summary of the history from a review of the record and from reports by the Veteran, and a thorough clinical examination in compliance with regulations and protocols. Although the Board found a deficiency in the July 2011 examination, it was corrected by the examiner in an addendum in December 2012. The Board concludes that the examination and record review were performed by a qualified physician's assistant under the supervision of a physician with appropriate consideration of the history and clinical observations. The Board will address the history, clinical observations, rationale for the opinion, and compliance with remand instructions below. Although the Veteran's representative argued in an October 2012 brief that examinations should be performed by an urologist and not a physician's assistant, the Board finds that the examination and opinion are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The competency of a VA examiner is presumed, absent a showing of some evidence to the contrary. Hilbert v. West, 12 Vet. App. 145 (1999). The Veteran has not provided evidence that the physician's assistant performed an improper examination or was unqualified. The Veteran did not submit evidence from a private urologist. The Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, in May 2009, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2009 hearing, the undersigned noted the issue on appeal. Also, information was solicited regarding the Veteran's groin symptomatology as well as the functional impact such disability has on his daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did reveal a history of treatment by a private medical provider and action was taken to request the relevant records. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Additionally, the Board issued remands in September 2009, December 2012, and June 2013. Following a review of the additional evidence, the Board concludes that there has been substantial compliance. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The RO requested additional evidence from the Veteran and a private medical provider, obtained current VA treatment records, and an additional VA examination and opinion. The Board finds that there has been substantial compliance with the mandates of its remands. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record. The Veteran served as a U.S. Marine Corps aviation operations clerk. In a September 2005 claim and in the March 2009 Board hearing, the Veteran contended that he injured his groin while negotiating a confidence course obstacle during recruit training in May 1979 with a continuity of symptoms since active service. Service connection may be granted for a 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 also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. § 3.304 (2012). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's contended genitourinary system symptoms are not recognized as a chronic disease. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that 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. In such cases, the Board may weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer). As reflected in Fed.R.Evid. 701, lay witness testimony is permissible in the form of opinions or inferences when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Service treatment records showed that the Veteran sought treatment at a base clinic during recruit training in May 1979. A clinician noted the Veteran's report of experiencing left testicle pain for the previous three days. There was no mention of a traumatic injury. On examination, the clinician noted no swelling or discoloration and prescribed a scrotal support. The Veteran continued training but returned to the clinic about six weeks later with a report of a red, swollen, and "mushy" left testicle. A hospital corpsman referred the Veteran to a medical officer for possible epididymitis. A physician noted that the urinary system was within normal limits and diagnosed a varicocele. The Veteran continued training and completed his enlistment with no further encounters for care of testicular symptoms. A January 1983 discharge physical examination was silent for any groin or testicular symptoms. The examining physician noted no genitourinary abnormalities. In a March 2000 letter, the Veteran's primary care physician noted that the Veteran worked as a postal service employee and was under treatment for multiple problems associated with a 1998 automobile accident. There was no mention of genitourinary symptoms. In January 2001, another physician noted that the Veteran had been a mail handler for 15 years performing heavy lifting, pushing, and pulling tasks. The physician addressed spinal, muscle, neurologic, and psychiatric symptoms but made no mention of genitourinary symptoms. In September 2004, a third physician noted the Veteran's report of erectile dysfunction and groin and penis pain and numbness after riding a motorcycle for 15 -20 minutes. On examination, the physician noted non-tender and symmetric epididymides with no scrotal lesions or masses and a normal urethral meatus. The prostate was normal and seminal vesicles were symmetric and not enlarged or distended. The physician did not diagnose a specific disorder but prescribed medication for erectile dysfunction. Records of the award of Social Security Administration (SSA) disability benefits include an August 2000 claim and records of examinations from November 2000 to June 2003. Physical assessments are completely silent for any symptoms of testicular or groin discomfort. A psychiatric examiner noted that the Veteran was very healthy and engaged in martial arts activity. The Veteran was diagnosed with erectile dysfunction but an examiner noted normal genitalia. SSA granted benefits for a back disability. In March 2006, a VA physician's assistant (PA) noted a review of the claims file and the Veteran's report of an injury in recruit training. He reported that after sliding down a rope he experienced swelling and discomfort of the left testicle. He reported that since that time he experienced episodic tenderness of the left testicle and numbness of the scrotum approximately five to six times per year. The Veteran reported that he could not ride a bicycle or walk longer than 20 minutes because of groin and lower back pain and shortness of breath. The Veteran did not have a history of kidney disease, and he reported that he was not receiving treatment for the left testicle symptoms. On examination, the PA noted that both testes had descended with no masses or hernia. There was a slight tenderness in the left epididymus. The PA diagnosed "left testicular discomfort with no etiology and no evidence of disease found." The PA further noted, "The patient's left testicular pain cannot be attributed as to events in military service without speculation. Military service medical records do not indicate chronicity and there is an approximate 20-year gap in time between medical visits as to the complaint of left testicular discomfort." In April 2006, the RO denied service connection for a right groin condition because the medical evidence did not show the existence of a disability during or after service. The RO did not explain why the claim was now limited to the right side. VA outpatient treatment records from October 2006 to June 2013 have been obtained and associated with the claims file. The records are completely silent for any symptoms, diagnoses, or treatment of testicular or scrotal pain. Early during this period of time, examiners noted that the Veteran enjoyed riding his motorcycle. Later in this period when the Veteran decreased his level of activity for unrelated disorders, his clinicians encouraged him to return to walking and bicycling. The Veteran did not object or report recurrent scrotal pain as limiting his activity. In a May 2009 Board hearing, the Veteran described his injury in service as pinching his right testicle while negotiating the "slide for life" obstacle that involved descending from a tower on a long inclined rope or cable. The Veteran stated that he sought treatment the next day and after service from a private physician who did not tell him the nature of the problem but only that he should "deal with it." He stated that he received treatment from two private physicians by name whose records were discussed above. He stated that he received his medical care from VA since 2006 and that he experienced "weird bowel problems" but was not receiving any current treatment. In July 2011, the VA PA who performed the examination in 2006 again noted a review of the claims file and the Veteran's reports of the date and nature of his injury in service. The Veteran reported that he was unsure but thought the initial injury was on the right testicle. The PA noted the Veteran's report of current right testicle pain and that he denied left testicle pain. The Veteran also reported episodic numbness of the groin and both buttocks over the past 32 years, generally occurring with prolonged sitting. Although the Veteran reported retiring in 2001 as a result of residuals of injuries in a motor vehicle accident, he reported missing 12 days of work each year because of testicular pain and was unable to ride a motorcycle longer than 15-20 minutes. The PA noted the history of a diagnosis of erectile dysfunction and that the Veteran was able to engage in sexual activity with the use of medication. On examination, the PA noted mild bilateral testicular tenderness on palpation but no other abnormalities. The PA did not record a diagnosis but noted that the symptoms prevented exercise, sports and recreation and imposed moderate limitations on chores and shopping. In a December 2012, the Board remanded the claim in part for the examiner to address the Veteran's hearing testimony. The Veteran stated that he initially injured the both testicles and the entire groin area, that he did not seek subsequent treatment in service after he left boot camp, and that his symptoms continued from the time he left service until present. In December 2012, the PA noted another review of the claims file and again commented that the service treatment records were silent for a right testicle injury. The PA did not address the left testicle treatment entry. Nevertheless, the PA accurately noted that following the treatment in 1979 on the left side, all subsequent treatment records were substantially silent for any complaints of testicular pain or clinical observations of abnormalities or pathology to explain the episodic tenderness. Except for the symptoms noted by the private physician in 2004, the Veteran reported these symptoms only on compensation and pension examinations. The private physician in 2004 did not diagnose a chronic disease but rather only prescribed medication for erectile dysfunction. The PA found that the Veteran was not a reliable historian because of his inconsistent reporting of the side of his original injury and current symptoms and because VA outpatient treatment records do not show reports by the Veteran or on-going problems involving testicular pain. The PA noted, "The patient's symptoms are not consistent with an identifiable disease entity..." The Board concludes that service connection for a groin condition whether right, left or bilateral, is not warranted because the great weight of competent and credible evidence is that the Veteran does not have a current chronic testicular or groin disability. As the first element of service connection has not been demonstrated, the appeal fails. Post service VA and private medical providers and the VA PA examiner considered the Veteran's lay evidence of his symptoms and have declined to diagnose a current chronic disability. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). As noted above, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the Veteran is competent to report on the circumstances of his injury in service and to testify in regard to the onset and continuity of symptomatology, including pain. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the determination that his episodic discomfort and numbness are manifestations of a physical abnormality, chronic residual of injury, or chronic disease falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, with regard to whether the Veteran has a current disability, the Board finds that the Veteran is not competent to determine whether his symptoms are manifestations of a chronic disability. Moreover, he has not asserted that he was told of a diagnosis by any clinician or examiner and none is of record despite many examinations and a long period of VA outpatient care. Regarding the credibility of the Veteran's reports of current or episodic symptoms of testicular discomfort and numbness, the Board finds that his reports warrant very low probative weight for several reasons. Following the brief treatment in 1979, the Veteran was able to perform his duties as a Marine without restriction. His reports of treatment by private physicians are inconsistent with the records in 2001 and 2004 that show diagnoses and treatment for erectile dysfunction but are silent for symptoms of testicular pain or numbness or any other abnormality. He reported the loss of 12 work days per year but retired in 2001 with no records of medical care for the symptoms. Finally, he was treated or examined in detail by private, SSA, and VA outpatient clinicians for a wide variety of symptoms but mentioned the symptoms in the context of medical care only once in 2004 when no diagnosis was noted. The Board is mindful that the credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence but this is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). The Veteran reported his symptoms to VA adjudicators and compensation and pension examiners but not to his regular VA outpatient clinicians or the SSA examiners in many situations where there were detailed observations and assessments of other symptoms. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). The Veteran acknowledged that he receives no care for his contended symptoms. Regarding the adequacy of the VA compensation and pension examinations, the Board concludes that the PA's clinical assessments of the existence of a current disability are adequate as they were based on a review of the history including the service records, accurate summaries of the Veteran's lay evidence, and an appropriate clinical examination. The Court has found that an examination is inadequate where the examiner relies on the absence of evidence in the service treatment records to provide a negative opinion. Further, a VA examination is inadequate where a VA examiner ignores the veteran's lay statements. See Dalton v Nicholson, 21 Vet App 23, 39-40 (2007). The Board acknowledges that the VA PA's July 2011 opinion contained the frequently disparaged term "speculation." When a Department of Veterans Affairs (VA) medical examiner states no conclusion as to etiology or diagnosis can be reached without resorting to speculation, it must be clear, from either the examiner's statements or the decision of the Board of Veterans' Appeals, that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis; when the record leaves the issue in doubt, it is the Board's duty to remand for further development. Jones v. Shinecki, 23 Vet.App. 382 (2010). In this case, in July 2011, the PA used the term to express an opinion on the etiology of the Veteran's symptoms but not in connection with the dispositive issue; that is, a current diagnosis. Moreover, his statement was not inconclusive but rather indicated that he could not provide a positive nexus opinion because it was unsupported by the weight of credible lay and medical evidence. Regarding his failure in the December 2012 addendum to explicitly address both right and left testicle symptoms and particularly the service treatment of the left testicle, the Board finds that this does not detract from the probative weight of his clinical observation in 2011 and continued assessment in 2012 of no current disability after his physical examinations of the Veteran's entire genital area. The weight of the credible and probative evidence demonstrates that the Veteran's current intermittent testicular discomfort and numbness are not manifestations of a disability. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right groin condition is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs