Citation Nr: 1343085 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 08-19 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service-connection for bilateral varicocele/hydrocele. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Jones, Associate Counsel INTRODUCTION The Veteran had active military service from July 1972 to July 1975. The character of service for this period of service was honorable. An additional DD Form 214 reflects that the Veteran also had active military service from July 1975 to October 1983; however, the character of service for this time period is listed as "bad conduct" and the Veteran was noted to have separated from this period of service because of a conviction by special court martial. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which denied service-connection for bilateral varicocele/hydrocele. Jurisdiction was later transferred to the RO in St. Louis, Missouri. This case was previously before the Board in November 2011, at which time the claim was remanded to the RO for further development. In December 2012, the RO issued a supplemental statement of the case (SSOC) which continued to deny service connection for bilateral varicocele/hydrocele. FINDING OF FACT The Veteran's bilateral varicocele/hydrocele was not shown in service and is not related to disease or injury in service. CONCLUSION OF LAW The criteria for an award of service connection for bilateral varicocele/hydrocele have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); 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 the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, 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. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such 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); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA's duty to notify the Veteran was satisfied prior to the initial rating decision through a notice letter dated July 2006 that fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim for service-connection, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. He was also apprised of how VA determines disability ratings and effective dates. VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). The Veteran asserts that he was treated at the Naval Medical Center of Norfolk, Virginia, from approximately 1975 to 1978. See December 2007 Notice of Disagreement. Service treatment records (STRs) are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to appellate consideration. VA's duty to further assist the Veteran in locating additional records has been satisfied. As noted above, the instant claim was previously remanded in November 2011 for additional development, specifically providing the Veteran a VA examination and readjudicating his claim. The Veteran was provided a VA examination in January 2012, which is adequate for the purposes of determining service connection as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claim was then readjudicated by a January 2012 supplemental statement of the case. There has been substantial compliance with the Board's previous remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Accordingly, the Board will address the merits of the claim. Analysis Service connection will be granted for a disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because, however, the Veteran's current diagnosis of bilateral varicocele/hydrocele is not listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply in the instant case. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Veteran claims that he is entitled to service connection for bilateral varicocele/hydrocele because it was present during service. In his December 2007 notice of disagreement, the Veteran specifically stated that he was treated in service for this disability between 1975 and 1978. Unfortunately, the Veteran's service from July 1975 to October 1983 was dishonorable, and it has been determined in an unappealed September 1990 administrative decision to be a bar to VA benefits. Therefore, the Veteran's contention that his current bilateral varicocele/hydrocele is in any way etiologically related to his second period of service from July 1975 to October 1983 cannot suffice to establish service connection. See 38 C.F.R. §§ 3.1, 3.12. The record, however, indicates that the Veteran had active duty from July 1972 to July 1975. His character of service for this period of service was honorable. In reviewing the evidence of record, the Board notes that the Veteran has been diagnosed as having bilateral varicocele/hydrocele; however, the competent, probative evidence of record does not etiologically link the Veteran's current disability to his service or any incident therein. STRs are negative for a diagnosis of or treatment for bilateral varicocele/hydrocele. An April 1972 report of medical history form indicates the presence of masses, which had been present for four to five days. Additionally, STRs for this period of service reflect that the Veteran was seen in April 1973, June 1973 and October 1973 for urethritis, acute, due to gonorrhea. On both occasions no inguinal lymphadenopathy was present. A February 1975 service treatment record notes complaints of discharge, but no dysuria, for one week. A March 1975 service treatment record notes that the Veteran was seen for complaints of painful urination. Gram Stain was positive. The July 1975 reenlistment physical examination was normal for the genitourinary system. In light of such evidence, the Board finds that bilateral varicocele/hydrocele was not manifested during active service. The post-service medical evidence indicates a varicocele was first diagnosed in approximately November 1998. See January 2004 Urology Clinic Report. The record indicates that the Veteran has continued to seek treatment for the disability since that time. The Veteran was afforded a VA examination in January 2012. The examiner noted that the Veteran is not required to take continuous medication for the disorder, there is no voiding dysfunction and no history of recurrent symptomatic urinary tract or kidney infections. The examiner noted that there was no erectile dysfunction and no history of chronic epididymitis, epididymo-orchitis or prostatitis. Upon physical examination, the examiner found the Veteran's penis and epididymis to be normal. He was found to have an abnormal right varicocele; however, there were no benign or malignant neoplasm or metastases related to the diagnosed disability. The examiner found no other pertinent physical findings, complications, conditions signs or symptoms. The examiner determined that the claimed condition was not at least as likely as not incurred in service. The examiner reasoned that an ultrasound of the testes in April 2010 revealed a small varicocele on the right; however, there is no medical nexus between the Veteran's complaints in the military in 1972, 1973 and 1975 and the current findings. The examiner noted that the Veteran stated that he had not seen his VA primary care physician. Although the Veteran has been diagnosed as having bilateral varicocele/hydrocele, there is no competent medical evidence in support of his claim that his current disability is etiologically related to active service. The Board acknowledges the Veteran's assertions that his bilateral varicocele/hydrocele was caused by service and that he has suffered from the disability for 30 years. See March 2012 Veteran Statement. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to independently render a medical opinion regarding the nexus between active service and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, his lay assertions of medical etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Additionally, the Veteran indicated that symptoms associated with his current disability began in approximately 1979. See February 2012 Veteran Statement. The Board notes that the period of service identified by the Veteran resulted in a dishonorable discharge. As such, service connection is not warranted for that period of service. See 38 C.F.R. §§ 3.1, 3.12. In sum, the Board finds that there is no evidence of bilateral varicocele/hydrocele in active service. The threshold question is whether there is sufficient evidence to establish an etiological link between the Veteran's current diagnosis of bilateral varicocele/hydrocele and his active service. The Board finds that the preponderance of the evidence is against the Veteran's claim. There is no competent medical evidence or opinion in support of his claim that his bilateral varicocele/hydrocele is the result of an in service incident or has any other etiological relationship to his active service. Moreover, the negative VA opinion weighs against the claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral varicocele/hydrocele is not warranted. ORDER Entitlement to service connection for bilateral varicocele/hydrocele is denied. ____________________________________________ James L. March Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs