Citation Nr: 1602662 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 14-12 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for atrophy of testis, status post hernia repair. 3. Entitlement to service connection for atrophy of testis, status post hernia repair. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from September 1972 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The May 2013 rating decision also denied service connection for a heart condition. The Veteran has not appealed that claim. In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. VA treatment records reflect diagnoses of PTSD and depression. As such, the Board has recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for an acquired psychiatric disorder and service connection for atrophy of testis, status post hernia repair are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed January 1992 rating decision denied service connection for a testicle condition. 2. A petition to reopen the claim of entitlement to service connection for loss of testis was received in December 2011. 3. Evidence received since the January 1992 rating decision is new and material and raises a reasonable possibility of substantiating the claim for service connection for atrophy of testis, status post hernia repair. CONCLUSIONS OF LAW 1. The January 1992 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim for service connection for atrophy of testis, status post hernia repair. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist In light of the favorable disposition of the claim to reopen the claim for service connection for atrophy of testis, status post hernia repair, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied, including discussion of whether the October 2015 Board hearing was conducted in compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010) and 38 C.F.R. § 3.103(c)(2) (2015) is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Claim to Reopen In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. For claims filed on or after August 29, 2001, as in this case, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273 (1996). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010) the Court stated that the phrase "raises a reasonable possibility of substantiating the claim" is not a third part of the new and material standard. The Court indicated the phrase must be viewed as "enabling" reopening rather than "precluding" it. Service connection for a testicle condition was previously denied in a January 1992 rating decision. The rating decision found that a testicle condition existed prior to service and was not aggravated by service. The evidence of record at the time of the January 1992 rating decision included service treatment records and VA outpatient records dated in 1991. Service treatment records reflect that the Veteran was evaluated for old hernia repair in November 1972. The Veteran reported progressive testicular atrophy since hernia repair surgery one year prior. He was diagnosed with testicular atrophy, possibly secondary to surgery. In December 1972, the Veteran was placed on physical profile for atrophied testicle. The Veteran was evaluated in the urology clinic for testicular pain in February 1973. The entry noted a history of left herniorrhaphy one and a half years prior with some compromise of blood supply. VA treatment records dated in September 1991 reflect that the Veteran reported left groin pain after heavy lifting. The evidence received since the prior denial includes private medical records dated in 1971, VA and outpatient treatment records, a VA examination dated in November 2013, written statements from the Veteran and Veteran's testimony at the November 2015 Board hearing. Treatment records from St. Mary's Hospital, dated in November 1971, show that the Veteran underwent left inguinal herniorrhaphy. The Veteran's written statements reflect his assertions that his testicle condition started during service when he was beaten. A private treatment record from Dr. Sanderlin, dated in September 2012, reflects that the Veteran was seen for testicular complaints and low testosterone levels. Upon VA examination in November 2013, the Veteran reported that he had an inguinal hernia repair prior to service. The Veteran reported that he incurred an atrophied left testicle from physical assault and road marching. The examiner diagnosed atrophy of the testis. The noted that there were several entries in the service treatment records pertaining to complaints of testicle pain. The examiner did not provide an opinion regarding the etiology of the Veteran's claimed testicle condition. The examiner noted, however, that military doctors indicated that left testicular atrophy was related to prior inguinal hernia surgery since there is no mention in the military treatment notes of physical trauma or injuries to the genitals. At the Board hearing, the Veteran testified that he was beaten up in service and was kicked in the groin. The Veteran stated that there was an investigation of the incident. He testified that the individual who beat him up was moved, and the investigation was dropped. The Board finds that new and material evidence has been received to reopen the claim for service connection for atrophy of testis, status post hernia repair. The claim was previously denied based upon a lack of evidence of aggravation of a testicular condition during service. The evidence received since the January 1992 denial is new, as it was not previously of record. The evidence is also material, as it relates to an unestablished fact of whether atrophy of testis was incurred in or aggravated by service. As new and material evidence has been received, the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having been received, the claim for service connection for atrophy of testis, status post hernia repair is reopened. To that extent only, the claim is granted. REMAND Service Connection for an Acquired Psychiatric Disorder The Veteran asserts that he has PTSD as a result of incidents in service. The Veteran testified that he was harassed by people in his barracks. He indicated that he fought with people and was also beaten with a pipe. The Veteran testified that he was hospitalized several times after service for suicide attempts. Service treatment records reflect that the Veteran was seen in sick call in September 1979 and reported that he was hit on the left arm with a pipe. He was diagnosed with a contusion of the left triceps. Post-service treatment records reflect that the Veteran was hospitalized in 1976 for a suicide attempt. VA outpatient treatment records reflect current diagnoses of PTSD and depression. A VA examination is warranted to ascertain the etiology of a current acquired psychiatric disorder, in light of the evidence of in-service incidents and the current diagnoses of PTSD and depression. The Veteran testified that he had psychiatric treatment while incarcerated in the Texas Department of Corrections at the Wynn and Rosharon units. On remand, the treatment records from the Texas Department of Corrections should be obtained and associated with the record. Service Connection for Atrophy of Testis, Status Post Hernia Repair The Veteran asserts that a testicle disability was incurred in service. A November 1972 entry in the service treatment records noted an operation one year prior for left inguinal hernia repair. The Veteran reported progressive testicular atrophy since surgery. The Veteran was diagnosed with subacute epididymitis and possible testicular atrophy. A physical profile and genitourinary consultation were recommended. In December 1972, the Veteran was placed on physical profile for atrophied testicle. The Veteran was evaluated in the urology clinic for testicular pain in February 1973. The entry noted a history of left herniorrhaphy one and a half years prior with some compromise of blood supply. Post-service treatment records indicate that the Veteran under left orchiotomy. VA treatment records reflect a current diagnosis of unspecified testicular dysfunction. At the Board hearing, the Veteran testified that he was beaten up in service and was kicked in the groin. The Veteran stated that there was an investigation of the incident. A remand is warranted to attempt to obtain any such incident reports or other investigation records. Upon VA examination in November 2013, the Veteran reported a history of hernia surgery prior to service. The Veteran reported an atrophied testicle due to road marching and physical assaults. The examiner diagnosed atrophy of the testis. The examiner noted that a review of the claims file showed that military doctors stated that left testicular atrophy was related to prior inguinal hernia surgery since there is no mention in the service treatment records of physical trauma or injury to the genitalia. The November 2013 VA examination is inadequate because the examiner did not address the Veteran's contention that an atrophied testicle is related to road marches and physical assaults in service. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner merely addressed a lack of documentation of physical trauma in service. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the lack of documented findings is not an adequate basis for a negative opinion. The Board finds that a new VA examination is warranted to ascertain a medical opinion regarding the etiology of atrophy of testis. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to obtain authorization for treatment records from the Texas Department of Corrections. After securing the necessary release, the RO should request these records. Any negative response should be documented in the claims file. 2. Contact the Department of the Army and request any records pertaining to investigations of any assault or beating reported by the Veteran during active service. Any negative response should be documented in the claims file. 3. Schedule the Veteran for a VA psychiatric examination. The claims file should be provided for the examiner's review in conjunction with the examination, and the examination report should indicate that the claims file was reviewed. Following a thorough evaluation, the examiner should: a. State whether the Veteran currently has PTSD, according to DSM-IV standards. The examiner should consider the Veteran's reported stressors of being harassed by other service members, fighting with people in his barracks and being hit in the arm with a pipe. The examiner's attention is directed to a September 1979 entry in the service treatment records, which reflects that the Veteran reported being hit on the left arm with a pipe. The examiner should identify the confirmed stressor upon which the diagnosis of PTSD is based. b. The VA examiner should diagnose any acquired psychiatric disorders, other than PTSD, that are present. For any acquired psychiatric disorder diagnosed, other than PTSD, the examiner should provide an opinion as to whether the disorder is at least as likely as not (50 percent or greater likelihood) related to active duty service. The examiner should consider the Veteran's testimony of being harassed in service and being involved in fights. The examiner should consider post-service treatment records which reflect that the Veteran was hospitalized for a suicide attempt in 1976. The examiner should provide a detailed rationale for the opinions. If an examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Schedule the Veteran for a VA genitourinary examination. The claims file should be provided for the examiner's review in conjunction with the examination, and the examination report should indicate that the claims file was reviewed. Following a thorough examination, the examiner should: a) Diagnose any current testicle disability; b) Opine as to whether a testicle disability clearly and unmistakably (i.e., it is medically undebatable) existed prior to service. c) If a testicle clearly and unmistakably existed prior to service, state whether there is clear and unmistakable evidence that the Veteran's pre-existing testicle disability was not aggravated beyond its natural progression during service. The examiner should consider the following: 1) private treatment records dated in 1971, which show that a herniorrhaphy was performed; 2) the diagnoses of atrophied testicle that were noted in service; and 3) the Veteran's competent testimony of participating in road marches and being kicked in the groin during service. The examiner is advised that "clear and unmistakable evidence" means evidence that is considered "undebatable." A complete rationale must be provided for the opinions stated. If the examiner cannot provide any of the requested opinions without resorting to speculation, the examiner should indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. d) If a testicle disability did not clearly and unmistakably exist prior to service, is it at least as likely as not (50 percent or greater likelihood) that a current disability was incurred in service, or is otherwise related to service, including the complaints of testicle pain and atrophied testicle in service, participation in road marches in service and being kicked in the groin during service. A complete rationale must be provided for the opinion stated. If the examiner cannot provide any of the requested opinions without resorting to speculation, the examiner should indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Thereafter, the RO/AMC should readjudicate the claims on appeal based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate review. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs