Citation Nr: 1629890 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 08-13 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a testicular disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from September 1976 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board previously remanded this matter in August 2012 for a VA examination and again in March 2014 for another VA examination. The Veteran was afforded a VA examination in November 2014. In February 2016, the claim was remanded to obtain a medical opinion addressing diagnoses that were noted during the appeal period. A supplemental opinion was obtained in April 2016. The Board finds that there has been substantial compliance with the Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT A testicular disability did not have its onset in service and is not otherwise related to service. CONCLUSION OF LAW A testicular disability not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this case, an April 2006 letter advised the Veteran of the evidence required to substantiate a service connection claim. The April 2006 letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The RO provided another notice letter in August 2014, which included notice of how VA determines disability ratings and effective dates. Any timing error with regard to the VCAA notices was cured by readjudication of the issues in the January 2015 Supplemental Statement of the Case. The Veteran has not alleged or demonstrated any prejudice with regard to the content or timing of the notices provided. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claim. The record includes service treatment records and post-service private and VA treatment records identified by the Veteran. The Veteran has been provided VA examinations and opinions based on such examinations, most recently in April 2016. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion and findings obtained in regard to his service connection claim are adequate. The examiner reviewed the Veteran's medical history and provided a medical opinion based upon the examination findings, interview of the Veteran and review the claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided an adequate examination to the Veteran. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis of Claim Service Connection for a Testicular Disability Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered 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. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran has been diagnosed with hydroceles. A hydrocele is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether service connection is warranted for a disability, 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 must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that a testicular disability is related to service. In a December 2013 statement, the Veteran indicated that he had an enlarged testicle during service. The Veteran stated that his condition is painful and reduces his chance of having children. The Veteran had active duty service from September 1976 to November 1988. A December 1984 entry in the service treatment record reflects that the Veteran complained of a large left testicle and infertility. The right testicle was noted to be atrophic and the left testicle within normal limits. Assessments of atrophic right testicle and infertility were noted. A July 1986 entry reflects that the Veteran was seen in emergency care with a complaint of a sudden onset of left testicular pain. Upon examination, the right testicle was atrophic. The left testicle was noted to be tender but normally oriented. An impression of early left epididymo-orchitis was noted. The Veteran was given medication and placed on bedrest for 48 hours, and was advised to follow up if his pain increased. No other complaints or findings of a testicle condition were noted in service. The October 1988 separation examination noted a normal clinical evaluation of the genitourinary system. The Veteran had a VA examination in August 2006. The Veteran reported a history of swollen testicles. He reported that the condition had existed for 30 years. Examination of the penis revealed normal findings. Examination of the testicles was abnormal, with a malformed and flat right testicle. The examiner indicated that the Veteran did not currently have swollen testicles. The examiner noted a malformed right testicle, which was flat in nature as opposed to the left. The examiner noted that, for the claimed condition of swollen testicles, a diagnosis was not possible because the Veteran did not have swollen testicles any longer. The examiner noted that there was a malformed right testicle, which was flat in nature as opposed to the left. VA outpatient progress notes dated in January 2008 reflect that a genitourinary examination showed bilateral descended testes with right mild tenderness to palpation with some element of superior tortuosity. A physician assessed testicular abnormality and no appreciable hydrocele, maybe a varicocele. The physician noted that this was a concern for 25 years. An ultrasound was requested. A February 2008 ultrasound of the scrotum revealed a small and mildly heterogeneous right testicle with small hydroceles, bilaterally. A VA examination dated in October 2013 noted a normal examination with no pathology. The Veteran had a VA examination in November 2014. With regard to a history of a testicle disability, the examiner noted the onset of symptoms in 1985-1986. The Veteran reported that his condition began while moving heavy equipment. The examiner noted that varicocele was absent. There was no tenderness or mass of either testicle. The examiner opined that there was no diagnosis because there was no pathology to render a diagnosis. The examiner indicated that the testicular examination was normal. A diagnosis of erectile dysfunction was noted. The Veteran had a VA examination in April 2016 to address the previous 2008 diagnoses of testicular abnormality and hydroceles. The examiner noted that an ultrasound in 2008 noted small bilateral hydroceles and a small right testicle. The examiner opined that hydroceles can resolve on their own. The examiner noted that hydroceles can be too small to be noted on clinical exam and can be of no clinical significance. As for the Veteran's complaints of continued testicular pain since service, the examiner noted that the Veteran reported that he had right testicular pain for two weeks in service. He did not recall the diagnosis. The Veteran reported that he was on antibiotics and ice packs and was back to normal after a month. The examiner noted that the Veteran remained in the military for three more years and did not have a further need to follow up for a testicle condition. The Veteran reported that he did not have further problems with his testicles since then. The Veteran reported that he did not have pain. The examiner noted that the Veteran was scheduled for an ultrasound, but he did not have it done. The Board finds that service connection for a testicular disability is not warranted. The Veteran has been diagnosed with testicular abnormality and hydroceles during the appeal period. However, there is no competent evidence of a nexus between a current diagnosed testicular disability and any incident of active service. The April 2016 VA examination concluded that the bilateral hydroceles and small right testicle noted in 2008 are not related to service. He essentially indicated that whatever symptomatology the Veteran experienced in service was acute and transitory, and resolved in service. There is no other competent medical evidence linking a testicular disability to service. The Board has considered the Veteran's statements regarding his symptoms. Laypersons are competent to testify as to what they observed and what is within the realm of their personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board finds that the issue of a causal relationship between active service and a current testicular disability is a determination that is medically complex and cannot be made based on lay observation alone. Thus, as a lay person, the Veteran does not have the appropriate medical background or expertise to provide a competent opinion in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For the reasons set forth above, the Board finds that there is a preponderance of the evidence against a finding that a testicular disability was incurred in or aggravated by service. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to service connection for a testicular disability is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Service connection for a testicular disability is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs