Citation Nr: 1751281 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-21 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including as secondary to status post left testicle removal and/or service-connected disorders. REPRESENTATION The Veteran represented by: Oliver Jahizi, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran had service in the United States Army from April 1983 to June 1985. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Los Angeles, California RO otherwise has jurisdiction of the claims folder. The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing in March 2016. A transcript of this hearing is of record. The Board remanded this appeal in June 2016 for further development. It is one again before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. FINDING OF FACT The competent medical evidence of record does not indicate that the Veteran's acquired psychiatric disorder was proximately caused by or proximately aggravated by any service-connected disorder. There are no complaints of findings of an acquired psychiatric disorder during service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, directly or on a secondary basis, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. In addition, the Board is satisfied that VA has complied with the directives of the Board's previous remand. Service Connection Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (1995). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. §3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Specifically, 38 C.F.R. § 3.310 (b) provides that any increase in severity of a nonservice-connected disease or injury, which is proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonservice-connected disease, will be service connected. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107 (b). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's Assertions The Veteran states that, due to an in-service injury while repelling down by ropes. It has also been contended that his service connected back and/or bilateral knee disorders. It is asserted that his left testicle was removed approximately 15 years after the conclusion of his service. The Veteran contends that, despite replacement therapy, the resulting continuous drop in testosterone levels induced and has since worsened his acquired psychiatric disorder of major depressive disorder. Facts and Analysis The Veteran's service treatment records (STRs) reveal that in May 1983 he presented with a traumatic injury to his testes and complaining of pain and edema. The examiner observed an enlarged, tender right epididymus (the posterior surface of the testicle, with a tube connecting to the rest of the reproductive system) and assessed the Veteran with traumatic epididymus. He was prescribed anti-inflammatory medication and given a scrotal support. A follow-up note four days after the injury showed that the Veteran's condition had "significantly improved." A January 1984 treatment record shows that an examination of the genitalia revealed the right testicle at the inferior pole. There was a palpable mass which was nontender and did not translumenate. There was no hernia and the remainder of the examination was within normal limits. Although the Veteran's separation examination is not of record, the remainder of his service treatment records contain no pertinent complaints of findings concerning his testicles. STRs contain no complaints of findings indicating an acquired psychiatric disorder. June 2008 VA progress notes indicate that in 2000 the Veteran underwent a left orchiectomy (removal of the testicle). The record further indicates that between July 2004 and July 2007, the Veteran, while undergoing treatment and Loma Linda VA and West Los Angeles VA consistently received assessments and diagnoses of depression, as well as low testosterone levels. In October 2007, the Veteran treatment records indicate that he was now receiving monthly injections. Although receiving testosterone replacement since 2005, the Veteran continued to suffer depression, as well as low energy and fatigue. Still in treatment for depression in April 2008, his condition was assessed as including occupational impairment due to, among other symptoms, near-continuous depression affecting his ability to function independently. By August 2008, the Veteran's treating physician at West Los Angeles VA stated his impression of the Veteran's disability as bipolar II, depressed. The record further indicates that between November 2008 and September 2009, the Veteran attended depression management therapy sessions at West Los Angeles VA. Treatment notes indicate assessments of depression through June 2013. In June 2011, the Veteran underwent a VA psychiatric examination. Although the VA examiner offered no opinion, he diagnosed the Veteran with depressive disorder, NOS (not otherwise specified). In May 2012, the Veteran's VA doctor opined that "it is possible" that the Veteran's low testosterone, resulting from treatment of his service-related testicular injury, contributed to his subsequent depressive illness. In a March 2016 VA examination, the Veteran was diagnosed with major depression. The March 2016 VA examiner opined that the Veteran's disability is more likely than not a result of his military service. He explained that the removal of a testicle resulted in the development of scar tissue which affected his other testicle and its subsequent removal; the Veteran developed a testosterone imbalance requiring testosterone treatment, which affected his mood; and he has been seriously disabled psychologically. Although the March 2016 VA examiner stated that at some later date the Veteran's right testicle was also removed, this is not reflected elsewhere in the record or in the Veteran's March 2016 Board hearing testimony. In a March 2017 VA Disability Benefits Questionnaire (DBQ), the VA examiner opined that "[t]he Veteran's current acquired psychiatric disorder is less likely as not proximately due to and/or the result of the Veteran's service-connected back condition and/or aggravated beyond its natural progression." He explained that "[the Veteran's] symptoms of depression appear more closely related to the removal of his testicle." The March VA examiner rendered exactly the same opinion in a second March 2017 DBQ as it pertained to the Veteran's service-connected knee conditions. The Veteran has stated in his statement accompanying his November 2012 VA Appeals Form 9 that his in-service injury damaged the left-side of his groin and crushed his right testicle. At the Veteran's March 2016 Board hearing, the Veteran's representative stated that the accident crushed his right testicle and damaged his left testicle and the Veteran testified he suffered a rope burn on his scrotum. A July 2008 rating decision, the RO denied the Veteran's claim for service connection for status post left-testicle removal. Although having his left-testicle was removed in 2000, the record indicates that his injury appears otherwise to have resolved. In a June 2011 addendum to his June 2011 VA examination and opinion, the doctor stated that, except having now only the right testicle, the Veteran's genital examination is otherwise within normal limits. Significantly, the record further indicates that competent medical opinion states that the post-service removal of the left testicle was unrelated to the in-service testicle findings, stated above. In a July 2012 VA Disability Benefits Questionnaire (DBQ), the doctor diagnosed the Veteran with the removal of a testicle and with hypogonadism. He opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. He explained that the Veteran's left orchiectomy is less likely than not related to the 1983 right-testicle injury during the Veteran's military service. He added there is no pathophysiological relationship and these are two distinct conditions. It is noted that service connection for the left testicle removal has been denied by final Board decision of June 2016. The March 2016 VA examiner's opinion stated that the Veteran's mental disability is more likely than not a result of his military service. However, his rationale supporting this opinion recounts the Veteran's loss of his left testicle; erroneously states he had lost his right testicle as well; notes the development of a testosterone imbalance; and further notes the resulting effect on the Veteran's mood. The March 2016 VA examiner therefore attributes the Veteran's depression to the loss of at least the left-testicle. In addition, the doctor's opinion that the Veteran's low testosterone levels possibly contributed to the onset of depression also attributes that disability to the Veteran's left-testicle removal. As stated above, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of another disease or injury, but only if it is a service-connected disease or injury. 38 C.F.R. § 3.310 (a). See also Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran's left-testicle removal is not service-connected and there is no basis for secondary service connection. For these reasons, the Board assigns little probative value to the opinions of the March 2016 VA examiner and Dr. P. K. The Board has carefully considered the Veteran's lay statements, as well as his testimony at the March 2016 Board hearing and his reports during examinations, as they appear throughout the record, all of which have assisted the Board in better understanding the nature and development of the Veteran's disability. As stated earlier in this decision, although lay persons are competent to provide opinions on some medical issues, the specific issue in this case concerning secondary causation and aggravation falls outside the realm of common knowledge of a lay person. The central question in this case, whether the Veteran's acquired psychiatric disorder was caused or aggravated by a service-connected disability, is a complex medical question, which is the subject of advanced medical knowledge concerning complex biological processes, anatomical relationships and physiological functions within the human body. The Veteran is competent to report symptoms and events he has observed or within his personal knowledge and he is credible in doing so. However, the Board must emphasize that the Veteran is not competent to diagnose or interpret accurately findings as to the origin of his disability or its relation to a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board must look to clinical findings when there are contradictory findings or statements inconsistent with the record. The Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In the absence of an explicit indication in the contemporaneous evidence of service connection, secondary or otherwise, it must rely on medical findings and opinions. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Based on the findings and opinions in the record, as discussed above, the Board finds that the Veteran's acquired psychiatric disorder was not proximately caused by or proximately aggravated by any service-connected disorder. Medical opinion has indicated that any depression is more likely related to a non-service connected disorder, and opinions are no file that his service connected back and bilateral knee disorders did not cause or aggravate the acquired psychiatric disorder. Moreover, there are no indications that any acquired psychiatric disorder had its onset during service. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to service connection for an acquired psychiatric disorder, including as secondary to status post left testicle removal and/or service-connected disorders, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs