Citation Nr: 1340636 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-07 974 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for right hydrocele and inguinal hernia, status post orchiopexy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran had active duty from June 1982 to July 1982. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision by the RO. In a March 2008 Substantive Appeal, the Veteran requested a personal hearing with a Veterans Law Judge. In May 2010, the Veteran submitted a statement indicating that he no longer wished to attend a hearing. The hearing request has therefore been withdrawn. See 38 C.F.R. § 20.702(e) (2013). In December 2011, the Board remanded the case to the RO for additional development of the record. That development has been completed and the case has since been returned to the Board for appellate review. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran is shown to have had a right hydrocele and indirect inguinal hernia and undescended right testis that clearly and unmistakably existed prior to his entrance into active service. 2. The pre-existing right hydrocele and indirect inguinal hernia and undescended right testis are shown clearly and unmistakably not to have been aggravated by the Veteran's brief period of active service. CONCLUSION OF LAW The pre-existing disability manifested by right hydrocele and inguinal hernia and status post orchiopexy was not aggravated by active service. 38 U.S.C.A. §§ 1110, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in an August 2006 letter, prior to the initial adjudication of the claim in March 2007. VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary. In this case, the Veteran was afforded a VA examination in May 2012. As discussed below, the examination was thorough, supported by explanations, based on a review of the claims file, and supported by clinical evidence of record. Further, the Board is aware that this appeal was remanded by the Board in December 2011. The remand requested that the RO obtain an examination opinion regarding the etiology of the Veteran's right hydrocele; inguinal hernia, status post orchiopexy, including whether any increase of the disability was due to the natural progression of the disease. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles As an initial matter, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disabilities are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service," the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2013). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) [noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"]. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2013). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2013). A finding of aggravation is also not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Analysis The Veteran asserts that his right hydrocele and inguinal hernia, status post orchiopexy were aggravated by service. A review of the service treatment records shows that a right hydrocele was noted at the time of the Veteran's enlistment in March 1982. The enlistment examination noted the presence of a right hydrocele. As a right hydrocele was recorded in the examination report at the time the Veteran was accepted and enrolled for service, the Board finds the presumption of soundness does not attach. 38 C.F.R. § 3.304(b). The service treatment records show that, in June 1982, within a week of enlistment, the Veteran was treated for right inguinal pain and indicated that he had a hydrocele. An examination revealed that he had testicular swelling and pain to palpation. He was diagnosed with rule-out hydrocele, possible hernia and referred for a urology consultation. A June 1982 urology consultation noted continuing complaints of swelling and pain. The Veteran indicated that his right scrotal swelling that had been present for "at least 3 [years]." He was diagnosed with a communicating hydrocele and offered surgery which he declined. It was therefore recommended that the Veteran be discharged due to a disability that existed prior to his enlistment. In July 1982, a Medical Board determined that the Veteran had a right hydrocele that existed prior to enlistment and recommended that he be discharged by reason of erroneous enlistment. The Medical Board noted that the disability was not considered to be the proximate result of the performance of active duty or aggravated by service. Following his separation from service, in October 1983, the Veteran is shown to have undergone surgery to repair an right indirect inguinal hernia and hydrocele, as well as a right orchiopexy for an undescended testes. In July 2006, the Veteran was noted to have complained of intermittent right groin pain and a rash. At a VA examination in May 2012, the examiner recorded a history of a surgical repair of right inguinal hernia by orchiopexy in 1983. The examiner also noted that the Veteran had an undescended right testicle that was surgically corrected with the right inguinal hernia. The Veteran reported that he had had right inguinal discomfort ever since his surgery in 1983. He indicated that there was mild, but constant tenderness to palpitation that was worse with sexual intercourse. The discomfort was not disabling. On examination, the examiner noted the presence of a postsurgical scar, but no right hernia was detected. The examiner also noted that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the inguinal hernia or the surgical repair of the hernia. His penis was noted as being normal, and his right testicle was noted to be abnormal because it was 1/2 to 1/3 of normal size. The examiner opined that the right inguinal hernia and right hydrocele were not a continuation of symptoms that started in service or were caused by, a result of, aggravated by, or aggravated beyond its natural progression by military service. The examiner reasoned that the Veteran was only in service for 36 days without any major physical demands as he was on limited duty as a result of the symptomatic hernia. The examiner reported that it was more likely than not that the Veteran would have had the problems and surgery regardless of military service. The examiner also noted that the majority of hydroceles went undetected and did not cause any symptoms. In addition, he stated inguinal hernias could be repaired surgically with good results and did not cause any problems or residuals. As the VA examiner reviewed the claims file, elicited a medical history from the Veteran, and gave detailed reasons for the opinion, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The specific findings, when viewed as a whole, are found to constitute clear and unmistakable evidence that the right hydrocele and indirect hernia, as well as the undescended right testes existed prior to service and not aggravated by the Veteran's short period of active service. Significantly, the Veteran is shown to have reported having symptoms shortly after entering service and to have added later that they had been present prior thereto. The changes noted and treated shortly after service also were consistent with a history of longstanding problems that had existed prior to service. There is no reliable evidence to show a chronic worsening of the condition as the result of service beyond an increase in symptoms or a "flare up" which do not constitute aggravation or a permanent worsening of the disorder. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In this case, the only reliable evidence is to the contrary. As such, the Board concludes that there was no aggravation. The Board has considered the Veteran's current assertions that the condition was permanently worsened as a result of active service. The Board acknowledges the Veteran is competent to report as to the observable symptoms he experienced, such as an onset of his symptoms and its history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, his lay assertions are of a general nature and are of limited probative value for the purpose of establishing aggravation in this case. The question of whether the right hydrocele and inguinal hernia and the right undescended testes were permanently worsened as a result of service is a complex medical matter of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Here, his lay assertions are outweighed by the medical evidence and the VA examination report and opinion. The Board has also considered whether the current complaints of discomfort and tenderness in the groin warrant service connection on a direct basis. However, there was no in-service treatment, complaint, injury, or diagnosis related to the groin, apart from the pre-existing right hydrocele and inguinal hernia and right descended testes. There is also no evidence to establish his current pain and discomfort are related to service. As such, service connection must be denied. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is not applicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for right hydrocele and inguinal hernia, status post orchiopexy is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs