Citation Nr: 1340942 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-06 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative arthritis of the thoracolumbar spine (hereinafter, "low back disorder"). 2. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative arthritis of the cervical spine (hereinafter, "cervical spine disorder"). 3. Entitlement to service connection for a right scrotum condition. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for radiculopathy of the upper extremities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from March 1998 to September 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah; and a November 2012 rating decision by the RO in Houston, Texas. The Houston RO currently has jurisdiction over the Veteran's VA claims folder. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2013. A transcript of that hearing has been associated with the Veteran's VA claims folder. Further, following this hearing the Veteran submitted evidence directly to the Board accompanied by a waiver of having such evidence initially considered by the Agency of Original Jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304(c) (2013). For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's low back, cervical spine, and radiculopathy claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. As an additional matter, the Board notes that the issue of service connection for an acquired psychiatric disorder, to include depression, as secondary to service-connected disabilities has been raised by the record, but has not been adjudicated by the AOJ. In addition, as discussed in greater detail below, the record reflects the Veteran's complaints of recurrent nasal/upper respiratory problems have been attributed to allergic rhinitis, and service connection for such a disability was also denied by the November 2007 rating decision. However, the Veteran did not appeal that denial. Nevertheless, his testimony regarding such recurrent problems at his July 2013 hearing could be construed as a request to reopen this previously denied claim. Therefore, these issues are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The competent and credible evidence of record reflects the Veteran currently has right hydrocele as a result of active service. 2. The competent medical evidence does not reflect the Veteran currently has chronic sinusitis. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for right hydrocele are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for a grant of service connection for sinusitis are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, as discussed in greater detail below, the Board finds that service connection is warranted for right hydrocele. As this represents a complete grant of the benefit sought on appeal regarding the claim of service connection for a right scrotum condition, no discussion of VA's duty to notify and assist is necessary with respect to this issue. In regard to the claim of service connection for sinusitis, the Board notes that VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has indicated that the notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was notified of VA's duty to assist as part of his participation in the Benefits Delivery at Discharge program, and submitted written confirmation that he received such notice in a March 2007 statement. The record associated with this program and acknowledgment indicates the Veteran was informed of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to establish disability rating(s) and effective date(s) should service connection be established. The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claims to include from his accredited representative have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding the sinusitis claim. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the July 2013 Board hearing. Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence which indicates he has chronic sinusitis, and that such disability is etiologically linked to service. With respect to the aforementioned July 2013 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (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 hearing, the VLJ accurately noted the current appellate issues, and asked questions to clarify the Veteran's contentions and treatment history. Although he did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the sinusitis claim, the Veteran, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate this claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes the Veteran was accorded a VA pre-discharge medical examination regarding this case in July 2007. As detailed below, this examination reflects the Veteran does not have chronic sinusitis. VA examiners are presumed qualified to render competent medical evidence. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). No inaccuracies or prejudice is demonstrated with respect to these findings, nor is it refuted by other competent medical evidence. Accordingly, the Board finds that this examination is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In this case, the Veteran contends that he had in-service surgery on his right testicle, and has had recurrent testicular pain since that time. He has also contended that he developed recurrent nasal/upper respiratory problems while on active duty. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board acknowledges that the Veteran is competent, as a lay person, to describe visible symptoms such as recurrent right testicular pain and nasal/upper respiratory problems. Further, as discussed below, there is evidence of such problems in the service treatment records. However, the Court has previously held that pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, appeal dismissed in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (Dismissing challenge to the issue whether pain, alone, can be considered a disability). Moreover, the record reflects the Veteran's nasal/upper respiratory complaints have been attributed to various conditions both during and subsequent to service, to include upper respiratory infection (URI), acute sinusitis, and allergic rhinitis. Therefore, the Board finds that competent medical evidence is required to diagnose the claimed disabilities. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The service treatment records confirm that he was diagnosed with a right testicular torsion in January 2006 and that he had surgery for repair of this condtion. The Board also notes that the Veteran reported this history at his July 2007 VA pre-discharge examination. However, physical examination of the testicles revealed normal findings, and no genital fistula was noted. Further, the examiner stated that there was no diagnosis for this claimed condition because the condition (i.e., torsion of testis) had resolved. Moreover, this claim was denied below on the basis of no permanent residual or chronic disability subject to service connection; i.e., no current disability. Despite the foregoing, the record reflects the Veteran sought post-service medical treatment for right testicular pain in April 2008. He reported his history of testicular torsion, and that his right testicle feels like pulling and gets swollen a couple of times and then will resolve on its own; and that the symptoms were intermittent. Further, these symptoms are consistent with what the Veteran has reported as his symptomatology for this claimed condition throughout the pendency of this case, to include at his July 2013 hearing. Ultrasound conducted on the scrotum in April 2008 revealed minimal right hydrocele, otherwise unremarkable examination. In other words, these complaints were attributed to right hydrocele. The Board acknowledges that the Veteran has reported his right testicular symptoms are intermittent, to include at his July 2013 hearing. However, the Court held in McClain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. In short, the Veteran's credible complaints of right testicular pain and other symptoms has been attributed to right hydrocele. Moreover, the record reflects that such complaints originated while he was still on active duty, and such diagnosis was made less than a year after his separation from service. Although hydrocele is not one of the chronic disabilities entitled to a grant of service connection if present to a compensable degree within the first post-service year under 38 C.F.R. §§ 3.307, 3.309(a), the fact that he indicated such a condition prior to discharge and the diagnosis was made based on such complaints in a relative short thereafter does tend to indicate this disability originated during service. As noted above, the Court has indicated that lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson; Jandreau. The Board also reiterates that the law mandates resolving all reasonable doubt in favor of the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Resolving all reasonable doubt in favor of the Veteran the Board finds that the competent and credible evidence of record reflects the Veteran currently has right hydrocele as a result of active service. Therefore, service connection is warranted for this disability. In regard to the sinusitis claim, however, the Board reiterates that while the Veteran was treated for nasal/upper respiratory problems during service these were attributed to different diagnoses. Although these diagnoses did include sinusitis, it was identified as "acute" sinusitis. Further, the sinus X-rays taken as part of the July 2007 VA pre-discharge examination were within normal limits, and no sinusitis was detected on physical examination. The examiner specifically stated regarding the claimed sinusitis condition that there was no diagnosis because there was no pathology to render a diagnosis. Moreover, the examiner attributed the Veteran's nasal/upper respiratory complaints to allergic rhinitis. Nothing in the other post-service medical records shows a diagnosis of chronic sinusitis. As noted in the Introduction, service connection for sinusitis was treated as separate from a claim of service connection for allergic rhinitis, both of which were denied by the November 2007 rating decision. Further, the Veteran only appealed the denial of service connection for sinusitis and not the denial of service connection for allergic rhinitis. Therefore, the Board does not have jurisdiction to address whether service connection is warranted for allergic rhinitis, or to consider the symptoms attributed to this diagnosis as part of the current appeal. In view of the foregoing, the Board must find that the competent medical evidence does not reflect the Veteran currently has chronic sinusitis. Additionally, there is no such evidence at any time subsequent to service so as to warrant consideration of McLain, supra. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. For these reasons, the Board finds that the preponderance of the evidence is against the claim of service connection for sinusitis. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Service connection for right hydrocele is granted. Service connection for sinusitis is denied. REMAND Initially, the Board notes that the November 2012 rating decision denied service connection for radiculopathy of the upper extremities. The Veteran subsequently expressed disagreement with that decision at the July 2013 rating decision. As such, his testimony constitutes a timely Notice of Disagreement (NOD) with respect to that decision. See 38 C.F.R. §§ 20.202, 20.302. However, the record available for the Board's review does not reflect a Statement of the Case (SOC) has been promulgated on this claim. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to direct that a SOC be issued. Regarding the claims for initial ratings in excess of 10 percent for the service-connected low back and cervical spine disorders, the Board notes that these disabilities were evaluated on both the July 2007 VA pre-discharge examination and a more recent VA examination conducted in October 2012. However, the Veteran contended at his July 2013 hearing that this examination did not accurately reflect the full severity of these disabilities as he was on pain medication at the time the examination was conducted. The Court has held that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). In this case, the schedular criteria for evaluating disabilities of the spine do not specifically include the affect of medication on such disabilities. See 38 C.F.R. § 4.71a. Thus, the Board finds that a new examination is warranted in order to accurately evaluate the current nature and severity of the Veteran's service-connected low back and cervical spine disorders. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a Statement of the Case as to the issue of entitlement to service connection for radiculopathy of the bilateral upper extremities and advise him of the time period in which to perfect an appeal as to these issues. 2. Obtain the names and addresses of all medical care providers who have treated the Veteran for his service-connected low back and cervical spine disorders since October 2012. After securing any necessary release, the obtain those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his low back and cervical spine symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and severity of his service-connected low back and cervical spine disorders. The claims folder should be made available to the examiner for review before the examination. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Such comments should include whether there is additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Further, the examiner should also discuss the nature and severity of any right or left-sided radiculopathy or neuropathy found to be present. The examiner must also state whether the Veteran has bowel or bladder problems related to his low back disability. 5. After completing any additional development deemed necessary, readjudicate the issues of entitlement to initial ratings in excess of 10 percent for the service-connected low back and cervical spine disorders in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in February 2013, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs