Citation Nr: 1421981	
Decision Date: 05/15/14    Archive Date: 05/29/14

DOCKET NO.  09-19 276	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for residuals of a right groin injury. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Rutkin, Counsel


INTRODUCTION

The Veteran served on active duty from October 1965 to January 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The case is currently under the jurisdiction of the RO in Boston, Massachusetts.

The Veteran testified at a hearing before the undersigned in April 2011.  A transcript is of record. 

After the June 2012 supplemental statement of the case (SSOC) was issued, the Veteran submitted additional evidence in the form of service department records which appear to be copies of records which were already in the file and considered by the agency of original jurisdiction (AOJ).  Moreover, in a May 2014 appellate brief, the Veteran waived his right to initial consideration of this evidence by the AOJ.  See 38 C.F.R. § 20.1304(c) (2013) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant).  

The Board remanded this case in September 2011 for further development.  It now returns for appellate review.


FINDING OF FACT

The Veteran does not have a current disability of the groin. 


CONCLUSION OF LAW

Service connection for a disability of the groin is not established.  38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303 (2013).  
REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duties to Notify and Assist

VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied.  See 38 U.S.C.A §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013).  

A December 2007 letter provided all notice required under the VCAA, followed by adequate time for the Veteran to submit information and evidence before initial adjudication of this claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b).

The Veteran's service treatment records have been associated with the claims file.  See 38 C.F.R. § 3.159(c).  He has not identified any other records or evidence he wished to submit or have VA obtain.  In this regard, he did not respond to a September 2011 letter requesting him to authorize VA to request on his behalf records from a Dr. C. Allen's office, or submit the records himself.  Without authorization from the Veteran, VA cannot attempt to obtain these records.  

A VA examination was performed in September 2011.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The examiner reviewed the Veteran's pertinent medical history, conducted a physical examination, and provided sufficient information to make a fully informed decision on this claim.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).  

In light of the above, the Veteran has had a meaningful opportunity to participate in the processing of this claim, and there is no indication of prejudicial error with regard to VA's duties to notify and assist.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010).  

II. Compliance with Board's Remand Directives

The record shows substantial compliance with the Board's remand directives to make appropriate efforts to obtain the Veteran's private treatment records from Dr. Allen's office, conduct a VA examination, and then to readjudicate the claim.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  Accordingly, the Board may proceed with appellate review. 

III. Compliance with Hearing Officer's Duties

At the April 2011 hearing, the Veteran had an opportunity to provide testimony in support of his claim that he has a current disability of the groin that was incurred in or aggravated by active service, facilitated by questioning from the undersigned and his representative.  He did not raise any new issues at the hearing.  Given the development undertaken by VA described above, including an attempt to obtain the Veteran's private treatment records from Dr. Allen's office by requesting authorization from the Veteran, as well as providing a VA examination, and in light of the Veteran's testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and there is no prejudicial error with regard to the hearing officer's duties under 38 C.F.R. § 3.103(c)(2) (2013).  See Bryant v. Shinseki, 23 Vet. App. 488, 498 (2010) (holding, in pertinent part, that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c)); see also Sanders, 556 U.S. at 407, 410.

IV. Analysis

The Veteran argues that he has a current disability of the groin related to an injury sustained in active service.  For the following reasons, the Board finds that a current disability of the groin is not established, and thus must deny service connection.  

Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge if the evidence shows that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a).  

Here, the current disability element is not satisfied.  During the pendency of this claim, there is no competent or credible evidence of pathology of the groin.  Although the Veteran testified at the April 2011 hearing that his right testicle was much larger than the left, the September 2011 VA examination report shows that a thorough examination was conducted and that the examiner found no abnormalities of the testes or genitalia.  The September 2011 examination is proximate in time to the Veteran's April 2011 testimony.  Thus, because his testimony is inconsistent with more probative evidence of record in the form of current objective clinical findings made by a medical professional based on examination of the Veteran and review of his medical history, the Board does not find it credible that he has current pathology of the testicles or genitalia.  

The Veteran has not submitted (or authorized VA to try to obtain on his behalf) any treatment records showing that he has a current disorder of the right testicle.  A January 2008 letter by Dr. Allen, the Veteran's private treating physician, states that in May 1997 the Veteran's right testicle was twice as large as the left on examination.  However, this finding pre-dates the present claim by a number of years and thus does not establish a current disability.  The current findings by the September 2011 VA examiner outweigh Dr. Allen's letter insofar as the latter is intended to show enlargement of the right testicle during the pendency of this claim.  Similarly, the Veteran's hearing testimony asserting that Dr. Allen told him his testicle was damaged does not support a current disability, as Dr. Allen's letter clearly shows that the finding of enlargement of the testicle occurred in 1997.  Although the Veteran may have symptoms involving the right testicle, such symptoms alone, without evidence of underlying pathology, do not in and of themselves constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  

Because the preponderance of the evidence weighs against a current disability of the testicles or genitalia during the pendency of this claim, service connection is not established.  See Shedden, 381 F.3d at 1166-67 (holding that service connection requires, among other things, evidence of a current disability); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes).

In summary, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for residuals of a right groin injury is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to service connection for residuals of a right groin injury is denied. 



____________________________________________
P.M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs