Citation Nr: 1551417	
Decision Date: 12/08/15    Archive Date: 12/16/15

DOCKET NO.  12-01 876	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence was received sufficient to reopen a claim of entitlement to service connection for epididymitis.

2.  Entitlement to an increased (compensable) rating for bilateral hearing loss.

3.  Entitlement to an increased (compensable) rating for a left varicocele.

4.  Entitlement to an increased (compensable) rating for hemorrhoids.

5.  Entitlement to an increased (compensable) rating for a scar, as a residual of a stab wound to the right chest.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and E.G., an interpreter


ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from February 1975 to February 1978 and from June 1979 to May 1983.  

This case initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico.

In October 2014, the Board remanded the Veteran's case to the RO to comply with his request for a Board hearing.

In June 2015, the Veteran testified during a hearing before the undersigned that was conducted by video conference.  His representative was not present and the Veteran stated that he wished to testify without representation.  A transcript is of record.

The April 2010 rating decision denied service connection for head trauma, and an October 2010 rating decision denied service connection for psychiatric disability and hypertension.  New records were received during the appeal period, but it does not appear that there has been a determination as to whether these were new and material.  Cf. Beraud v. McDonald, 766F,3d 1402 (Fed. Cir. 2014).  At his hearing he indicated an intention to claim service connection for residuals of multi-head trauma.  See Board hearing transcript at page 12.  In June 2015 the Veteran submitted a new claim for service connection for these disabilities.  These matters are referred to the agency of original jurisdiction (AOJ) for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

The issues of entitlement to service connection for epididymitis and increased ratings for bilateral hearing loss, left varicocele, hemorrhoids, and chest scar, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  A July 2000 rating decision denied service for epididymitis with radiation to the left groin, hip, and thigh; the Veteran did not submit evidence or a notice of disagreement within one year of notice of the decision.

2.  The evidence added to the record since the July 2000 decision relates to a basis for the previous denial and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The July 2000 rating decision denying entitlement to service connection for epididymitis with radiation to the left groin, hip, and thigh is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2015).

2.  Evidence received since the July 2000 RO decision is new and material and the claim is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The July 200 rating decision denied the Veteran's claim for service connection for epididymitis with radiation to the left groin, hip, and thigh, on the basis that there was no medical evidence showing a nexus or link between a current disability and the condition in service.

The Veteran was notified of the RO's July 2000 determination and his appellate rights but did not submit a notice of disagreement.  Moreover, no evidence was received within one year of notice of the decision.  Cf. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  Hence, the July 2000 decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

A claim will be reopened if new and material evidence is received.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  

The language of 38 C.F.R. § 3.156(a) creates a low threshold for reopening a previously denied claim.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 

The evidence added to the record since the July 2000 rating decision includes the Veteran's written and oral statements in support of his claim and a March 2015 private urology record.  The record reflects his complaint of left testes discomfort with sex and a history of left testes trauma many years earlier in service.  The assessment was left epididymal swelling and problem with sex.  

During his June 2015 Board hearing, the Veteran said that a physician told him he had testicular problems caused by an accident in service.  See Board hearing transcript at page 3.  The Veteran stated that he was carrying a tank wheel that dropped to the ground and bounced up, hit him, and caused testicular swelling.  Id.  He experienced problems in life since that time, including pain, and sexual difficulty.  Id.  

The Veteran's testimony relates to the previously unestablished elements of a current epididymitis disability and a link between epididymitis condition and service. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, 24 Vet. App. at 117-20.


ORDER

New and material evidence has been received to reopen the claim for service connection for epididymitis.


REMAND

During his June 2015 Board hearing, the Veteran testified that he received disability benefits from the Social Security Administration (SSA) due to osteoarthritis and affective mood disorders.  See Board hearing transcript at page 12.  The administrative decision and records considered by the SSA in its award of disability benefits must be obtained.  Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

Service treatment records discuss treatment for epididymitis that, on December 3, 1982, a clinician speculated could be due to the Veteran's varicocele.  A March 2000 VA examiner diagnosed chronic epididymitis.  In March 2015, the private urologist noted left epididymal swelling. 

The Board's finding of new and material evidence to reopen the Veteran's claim for service connection for epididymitis entitles him to a VA examination.  Shade v. Shinseki, 24 Vet App at 120-2.

The Veteran last underwent VA examinations for his other disabilities in March 2010.  A June 2014 private operative report shows that he underwent hemorrhoid surgery.  In April 2015, his surgeon noted that the Veteran had an internal hemorrhoid without complications.  

A March 2015 private audiological evaluation reflects that a hearing aid evaluation was recommended.  The Veteran testified that, on June 11, 2015, he was scheduled for a hearing aid evaluation at a VA outpatient clinic.  See Board hearing transcript at pages 5-7.  VA has a duty to obtain these relevant VA medical records.  38 U.S.C.A. § 5103A(b), (c) (West 2014). 

The Veteran also testified that his chest scar caused underlying muscle stiffness that limited his muscular strength.  See Board hearing transcript at page 10.  His scar disfigured his chest and caused weakness, particularly with weather changes.  Id. at 11.  Given the evidence of a change in the conditions, he is entitled to new examinations.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  

Accordingly, the case is REMANDED for the following action:

1. Obtain all VA records of the Veteran's treatment for the disabilities on appeal, including those from the VA Mayaguez outpatient clinic, dated since March 2010.  If any requested records cannot be obtained, the appellant must be notified of the attempts made and of what additional actions will be taken with regard to his claim.

2. Request that the Veteran complete authorizations for VA to obtain any additional records of private treatment for the disabilities at issue since April 2015.

a. If the Veteran fails to provide necessary authorizations, inform him that he can submit the evidence himself.

3. Obtain the SSA disability decision, all records considered in conjunction with its decision, and any subsequent determinations regarding the Veteran.

4. If any requested records cannot be obtained, inform the appellant what records could not be obtained, the efforts made to obtain the records, and what further actions will be taken on his claims.

5. After completing the development requested above, schedule the Veteran for a VA examination by a physician to determine whether epididymitis is related to service, including the left varicocele, and to evaluate the severity of the left varicocele.  The claims file including this remand should be reviewed by the examiner.  All indicated tests and studies should be performed. 

The examiner should address the following:

a. Left Varicocele

The examiner should comment on whether there is atrophy of both testes.

b. Epididymitis

i. Is any epididymitis shown since 2009, at least as likely as not, caused by a disease or injury in active service; including the events noted in the service treatment records dated March 2, 1981, November 24, 1982, and December 3 and 22, 1982?

ii. If not, is it at least as likely as not (50 percent probability or more) that the Veteran's current epididymitis was caused (in whole or in part) by his service-connected left varicocele?

iii. If not caused by the left varicocele, is it at least as likely as not (50 percent probability or more) that the Veteran's current epididymitis was aggravated (made worse) by his service-connected left varicocele disability? 

The examiner should note that VA will not concede aggravation unless the baseline level of the disability is established by medical evidence created prior to the aggravation, or or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of epididymitis.

iv. that shows a baseline of epididymitis prior to aggravation?

c. The examiner must provide reasons for all opinions.

d. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be specifically acknowledged and considered in formulating opinions.  If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should be provided.

e. The absence of evidence of treatment for epididymitis in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

f. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified.

6. Schedule the Veteran for VA examinations to determine the current severity of his service-connected bilateral hearing loss, hemorrhoid, and chest scar, disabilities.  All indicated tests and studies should be performed.

a. With regard to the bilateral hearing loss disability:  

The VA examiner should comment on the effects of hearing loss on the Veteran's daily activities.

7. If any benefit on appeal remains denied, issue a supplemental statement of the case.  Then return the case to the Board, if in order.

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 2014).

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs