Citation Nr: 1337371	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  13-13 925	)	DATE
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THE ISSUE

Whether an April 11, 2013 decision of the Board of Veterans' Appeals that denied service connection for a genitourinary disability should be reversed or revised on the basis of clear and unmistakable error (CUE).


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran served on active duty from August 1989 through December 1995.

This matter comes before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on an April 2013 motion in which the moving party alleged CUE in an April 2013 Board decision that denied service connection for a genitourinary disability.



FINDINGS OF FACT

1.  In an April 11, 2013 decision, the Board concluded that the evidence of record did not support a grant of service connection for a genitourinary disability.

2.  The correct facts, as they were known at the time of the April 11, 2013 decision were before the Board; the statutory or regulatory provisions extant at that time were correctly applied; there was a tenable basis for each of the Board's determinations; and the moving party has not alleged any specific error by the Board that would have manifestly changed the outcome of the appeal.


CONCLUSION OF LAW

The criteria have not been met for revision or reversal, on the basis of CUE, of the April 11, 2013 Board decision, which found that the evidence of record did not support a grant of service connection for a genitourinary disability.  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1402, 20.1403, 20.1404 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that the notification and duty to assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) are not applicable to claims of CUE in prior Board decisions.  38 C.F.R. § 20.1411(c), (d); Livesay v. Principi, 15 Vet. App. 165 (2001).  Accordingly, no further action is necessary for compliance with the VCAA.

In the April 2013 motion, the moving party argued that CUE was committed by the Board in the April 2013 decision.  In that decision, the Board denied service connection for a genitourinary disability on the basis that the evidence did not show that the Veteran's current genitourinary disorders are related to his active duty service.

In its rationale, the Board acknowledged that the service treatment records show that the Veteran was treated during service for various genitourinary disorders including:  tinea cruris in September 1989; dysuria diagnosed as non-gonococcal urethritis in January 1992; dysuria of unknown etiology but suspected of being secondary to dietary changes in January 1994; and condylomatous lesions on the Veteran's penis noted in the Veteran's August 1995 separation examination report.  The Board noted, however, that despite the lesions noted in the separation examination report, a clinical genitourinary examination performed at that time was normal.  Moreover, the Board observed, the Veteran did not endorse a history of genitourinary problems in the medical history questionnaire completed during his separation examination.  Hence, the Board concluded that the service records strongly suggest that neither trained medical professionals nor the Veteran himself believed that he had any genitourinary abnormalities (aside from the aforementioned lesions) during his active duty service.

In discussing the post-service evidence, the Board noted that the earliest post-service mention of genitourinary disorders was made in a January 2004 VA treatment record, which noted complaints of a scrotal abscess which began in 1999 and testicular pain which, according to the Veteran, began six months before.  The Board also noted that private treatment records dated from 2004 also reflected scrotal complaints, which also according to the Veteran, began in late 2003 or early 2004 without any mention of an in-service injury or reported onset during service.  The Board also acknowledged the Veteran's April 2010 hearing testimony that he began experiencing testicular pain following an in-service incident in which he fell from the flight deck onto a catwalk.

The Board also noted that an October 2010 VA examination diagnosed a right hydrocele; however, the examiner opined that this condition was less likely as not related to the Veteran's active duty service, to include his in-service complaints of urethritis and condylomatous lesions.  The Board noted that this opinion was insufficient because it did not reference or discuss the post-service diagnoses of epididymitis, orchitis, and/or varicocele which were shown in the record.

The Board then noted that a November 2012 VA examination, which was performed in conjunction with a review of the claims file, confirmed a right hydrocele but also revealed a left varicocele and the presence of two millimeter anechoic cysts of the epididymis on both testicles.  During the examination, the Veteran reported that he had been experiencing sharp aching in his right testicle that began after he had a scrotal lesion frozen in either 1994 or 1995.  According to the Veteran, this pain had increased over the years and VA doctors had recommended surgery, which the Veteran reportedly declined.  Upon review of the record, the examiner four separate echography studies performed in the time frame from February 2004 through April 2007 which revealed findings:  (1) suggestive of orchitis; (2) a right sided hydrocele; (3) bilateral epididymal cysts; and (4) left varicoceles.

Despite the foregoing, the examiner determined that the Veteran's genitourinary disorder was less likely than not incurred in or caused by the Veteran's active duty service, or by any event therein.  As basis for this conclusion, the examiner explained that hydroceles are the result of cystic dilation of the covering around both sides of the testis and epididymis, and that such pathology may have multiple etiologies, including congenital causes, and also, may be associated with infections involving the epididymis and with torsion of the testicle.  Further, the examiner noted, neither urethritis nor condyloma (such as those noted in the Veteran's service treatment records) are known risk factors or causes for hydrocele.  The examiner also pointed out that the Veteran's in-service conditions of dysuria, urethritis, and tinea cruris are caused by viral, bacterial, or fungal infections, and in the Veteran's case, were successfully treated by antibiotic and antifungal medication.  Indeed, the examiner noted, the subsequent service treatment records and the post-service treatment records did not show any ongoing complaints or findings of groin or testicle pain within one year from the Veteran's separation from service.  On these bases, the examiner concluded that the Veteran's "varicocele, hydrocele, and orchitis...have no association with his in-service diagnosed (sic) and treated dysuria, urethritis, tinea cruris, and condylomatous lesions."

The Board concluded that the November 2012 VA examiner's opinion was adequate and probative of the Veteran's claim for service connection for a genitourinary disorder.  Determining further that there was no competent evidence in the record which contradicted the VA examiner's negative November 2012 opinion, the Board found that the November 2012 opinion was persuasive.  

Acknowledging the Veteran's assertions of continuous symptoms since service, the Board first noted that the Veteran lacked the medical training or experience to provide a competent opinion as to whether his current genitourinary problems were caused or aggravated by his active duty service.  Second, the Board noted that, even acknowledging the Veteran's competence to provide statements regarding the onset and continuity of his symptoms, the Veteran's contentions were not credible and therefore were not probative of the issue on appeal.  In that regard, the Board pointed out that the Veteran's contentions of continuity were inconsistent with the absence of any noted complaints or findings in the service treatment records following his April 1995 fall on the flight deck, as testified by the Veteran during his Board hearing.  The Board also noted that separate contentions made by the Veteran during his November 2012 VA examination, that he began experiencing testicular pain after having a lesion on his scrotum frozen in 1994 or 1995, is also inconsistent with the fact that the Veteran did not mention testicular problems or other genitourinary disability in a previous January 1996 claim for other disabilities.  In that regard, the Board reasoned that if the Veteran was experiencing testicular symptoms dating back to service, he most likely would have referred to such symptoms in his 1996 claim for disability benefits.  Finally, the Board observed, the January 2004 VA treatment record which initially noted post-service complaints of right testicular pain, expressly state that the Veteran reported the onset of testicular pain as beginning in the middle of 2003, with no suggestion of in-service onset or injury.  Based upon the foregoing inconsistencies, the Board determined that the Veteran's assertions concerning continuity of symptoms were not credible, and, that the November 2012 VA examiner's opinion was entitled to greater probative weight.

Based upon the foregoing determinations, the Board concluded that the preponderance of the evidence was against the Veteran's claim for service connection for a genitourinary disorder.


In the April 2013 motion for CUE, the moving party first argued that the Board committed CUE in concluding, "[s]ervice treatment records (STR's) show multiple genitourinary diagnoses, although none of those diagnosed in service matches a diagnosis shown during the pendency of this appeal".  Toward that end, the moving party asserted that the Board incorrectly applied 38 CFR 3.303(b).  Citing Hodges v. West, 13 Vet. App. 287 (2000), the moving party points out that, "[c]ontinuity of symptomatology analysis does not require that a claimant be diagnosed with the same condition both in service and at the time of his claim for service connection, for the claim to be well grounded."

In further support of his motion for CUE, the moving party also alleged that the Board overlooked evidence in the record, including:

(1) in-service laboratory reports dated from January 1992 through March 1992 which purportedly show white blood cell abnormalities, prescription of a 14 day course of Doxycycline, GS results of 3+, and positive findings of cocci which were deemed suggestive of Staph SPP;

(2) September 1993 findings of white blood cells being present in the Veteran's urine, and purportedly elevated levels of creatinine (noted by the Veteran as 1.3), sodium (noted by the Veteran as 144), potassium (noted by the Veteran as 4.5), protein (noted by the Veteran as 8.1), and albumin (noted by the Veteran as 5.0);

(3) April 2006 laboratory results purportedly showing decreased red blood cell count (noted by the Veteran as being 4.76), HGB count (noted by the Veteran as being 14), HCT (noted by the Veteran as being 41.4, MCHC (noted by the Veteran as being 33.8), and elevated MPV (noted by the Veteran as being 10.2) and elevated RDW (noted by the Veteran as being 14.2);

(4) June 2000 laboratory results purportedly showing elevated creatinine (noted by the Veteran as being 1.1), sodium (noted by the Veteran as being 144), chloride (noted by the Veteran as being 106), albumin (noted by the Veteran as being 4.9), calcium (noted by the Veteran as being 10.2), and SGPT (noted by the Veteran as being 55);

(5) March 2004 laboratory findings purportedly showing elevated albumin (reported by the Veteran as being 5.0), SGOT (reported by the Veteran as being 38), SGPT (reported by the Veteran as being 77), and purported positive findings of hepatitis A; and

(6) June 2004 lab results purportedly showing elevated creatinine (reported by the Veteran as being 1.1), sodium (reported by the Veteran as being 142), albumin (reported by the Veteran as being 4.6), SGOT (reported by the Veteran as being 44), SGPT (reported by the Veteran as being 84); and decreased levels of hemoglobin (reported by the Veteran as being 13.9), monocytes (reported by the Veteran as being 11), and testosterone (reported as being 241).

In addition to the aforementioned laboratory findings, the moving party also suggests that the Board failed to acknowledge post-service diagnoses of scrotal pain and hydrocele in April 2004; varicocele and impotence in August 2004; and elevated liver function in January 2005.  In sum, the Veteran argues that the laboratory findings and post-service diagnoses outlined above establish a nexus between his current genitourinary problems and his active duty service; thus, he argues, the Board's failure to acknowledge or consider the aforementioned evidence constitutes CUE.

A Board decision is final as of the date that is stamped on the face of the decision.  38 C.F.R. § 20.1100 (2012).  A final Board decision is subject to review by the Board on a motion alleging CUE.  38 U.S.C.A. § 7111(a) (West 2002); 38 C.F.R. § 20.1400 (2012).  A motion alleging CUE in a Board decision is a matter of original jurisdiction with the Board.  See 38 U.S.C.A. § 7111(e) (West 2002); 38 C.F.R. § 20.1402 (2012).  Motions alleging such error are not, except as otherwise provided, subject to rules relating to processing and disposition of appeals.  38 C.F.R. § 20.1402 (2012).

A motion alleging CUE must necessarily be pled with some specificity as to what the alleged error is, unless it is the kind of error that if true would constitute CUE on its face.  In that regard, the moving party should provide persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error.  Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on the merits).  The Board recognizes that it is under a duty to read liberally the moving party's motion.  Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009).

CUE is a very specific and rare kind of error.  It is the kind of error, which may be of either fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.  38 C.F.R. § 20.1403(a) (2012).  Moreover, the Board decision is to be based on the record and the law that existed when the challenged decision was made.  38 C.F.R. § 20.1403(b) (2012).  Specifically for Board decisions that were issued on or after July 21, 1992, the record that existed when the decision was made includes relevant documents that were in VA's possession not later than 90 days before such record was transferred to the Board for its review, provided that the documents could reasonably be expected to be part of the record.  38 C.F.R. § 20.1403(b)(2) (2012).

The Board reiterates that CUE is the type of error; one which, had it not been made, would have manifestly changed the outcome when it was made.  The error cannot be clear and unmistakable unless it is absolutely clear that a different result would have ensued, but for the error.  38 C.F.R. § 20.1403(c) (2012).  The regulations expressly state that the following instances do not constitute clear and unmistakable error: (1) changed diagnosis; (2) failure to fulfill the duty to assist; or (3) a disagreement as to how facts were weighed or evaluated.  38 C.F.R. § 20.1403(d) (2012).  Also, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to a Board decision challenged, there has been a change in the interpretation of the statute or regulation.  38 C.F.R. § 20.1403(e) (2012).

Under applicable laws and regulations, 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 competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

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).

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

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); 38 U.S.C.A. § 5107(b).

Mindful of the foregoing, the Board turns to the moving party's specific arguments for CUE.  In relation to the moving party's first argument, that the Board improperly applied 38 C.F.R. § 3.303(b) by stating that "[s]ervice treatment records (STR's) show multiple genitourinary diagnoses, although none of those diagnosed in service matches a diagnosis shown during the pendency of this appeal," the Board finds that the moving party fails to assert CUE.  In that regard, a plain reading of the April 2013 decision reflects that the denial of the Veteran's service connection claim was not based upon the aforementioned statement.  Rather, and as discussed in detail above, the Board's denial appears to have been based primarily upon the VA examiner's uncontradicted November 2012 and the Board's determination that the Veteran's assertions of continuity carried grave credibility concerns.  To the extent that the Board may have relied to any degree upon the finding that the service treatment records did not indicate a diagnosis during service which "matches" post-service diagnosis to conclude that the evidence contradicted the Veteran's assertions, the Board points out that other inconsistencies in the record were also noted, which also raised credibility concerns regarding the Veteran's statements.  In view of the foregoing, the moving party appears to place undue emphasis upon the Board's statement, as the other evidence in the record amply supports the conclusion in the April 2013 decision that the uncontradicted medical opinion of the November 2012 VA examiner was due greater probative weight than the Veteran's inconsistent statements concerning continuity.  For these reasons, the Board finds that the Board did not improperly apply 38 C.F.R. § 3.303(b).

In relation to the moving party's argument that the Board failed to consider the laboratory test results outlined above, the Board first notes that the laboratory results cited by the moving party actually reflect test scores which are generally within normal limits.  In that regard, the Board notes that the cited laboratory test reports in the record provide a range of findings that are to be considered as being within normal limits, and, a comparison of the test scores cited by the moving party to the provided normal ranges indicate test scores that were essentially within normal limits.  Indeed, the moving party even transcribes these normal score ranges in his motion, and to that extent, appears to contradict the main thrust of his own argument.  To the extent that the moving party has identified any test scores that fall outside the identified normal range, he has not pointed to any medical opinions or other evidence in the record that even suggests that such scores are indicative of a current genitourinary disorder that is related to his active duty service.  Indeed, a review of the record reflects that no such opinion was ever expressed, either during private or VA treatment or during the October 2010 or November 2012 VA examinations.  Overall, there is simply no evidence in the record which even suggests that abnormal test scores contained in the record are related in any way to the Veteran's genitourinary disorders, or, that these abnormal test scores indicate in any way a relationship between his current genitourinary disorders and his active duty service.  Accordingly, the Board finds that CUE was not committed by the omission of the aforementioned lab results from the Board's discussion and analysis in its April 2013 decision.

Turning to the moving party's argument that the Board committed CUE by failing to consider post-service diagnoses of scrotal pain, hydrocele, varicocele, impotence, and elevated liver function, the Board finds that such arguments also fail to allege CUE.  In that regard, the Board points out that these post-service diagnoses were actually acknowledged in the April 2013 decision in relation to the Board's discussion of an October 2010 VA examination which, the Board determined, was deficient because it failed to consider or address post-service diagnoses of epididymitis, orchitis, and/or varicocele.  In the Board's discussion of the November 2012 VA examination, the Board expressly noted and placed reliance upon the examiner's express and urebutted finding that, "[the Veteran] has varicocele, hydrocele, and orchitis all of which have no association with his in-service diagnosed and treated dysuria, urethritis, tinea cruris, and condylomatous lesions."  Thus, the Board concluded, "there is otherwise no medical basis for associating any of the Veteran's several current genitourinary diagnoses during the pendency of this appeal (orchitis, hydrocele, varicocele, and epididymis problems) with the particular diagnoses to his military service."  In view of the foregoing, a plain reading of the April 2013 decision reflects that the post-service diagnoses which the moving party now points out were in fact considered as part of the Board's analysis, and, that the Board determined as a factual basis that the evidence did not support a relationship between those diagnosed disorders and the Veteran's active duty service.  Accordingly, the Board concludes that no error was committed.

In summary, based upon the above discussion, as the Board decision of April 11, 2013, contains no error of fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would be manifestly different but for such error, the action was not clearly and unmistakably erroneous in failing to award the benefits then on appeal.
ORDER

The motion to revise or reverse the April 11, 2013 decision of the Board that denied entitlement to service connection for a genitourinary disability is denied.




                       ____________________________________________
	DAVID L. WIGHT
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs