Citation Nr: 1800198 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-05 043A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for epididymitis, to include as secondary to exposure to Agent Orange (AO)/herbicides. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to epididymitis. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. These matters come before the Board of Veterans' Appeals (Board) from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge in August 2017. A transcript of the hearing was prepared and associated with the claims file. A Supplemental Statement of the Case (SSOC), issued by the RO in May 2017, continued to deny service connection for epididymitis and erectile dysfunction. FINDINGS OF FACT 1. The Veteran's current left testicle atrophy is not presumed to be caused by exposure to AO/herbicides in service, nor is it shown to be causally or etiologically related to any disease, injury, or incident in service, including in-service diagnosis of epididymitis. 2. The Veteran's erectile dysfunction is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The Veteran's left testicle atrophy was not incurred in active duty service, to include an in service diagnosis of epididymitis, nor was it caused by exposure to AO/herbicides in service, and it may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist (a) Duty to Notify As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the Veteran is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). The VCAA duty to notify initially was satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in January 2012. The letter informed the Veteran of the evidence required to substantiate the claim and of the respective responsibilities in obtaining this supporting evidence, including advising of how disability ratings and effective dates are assigned. The claim was last adjudicated by way of a May 2017 SSOC. Thus, the Veteran has received all required notice concerning the claim. (b) Duty to Assist VA also has a duty to assist a Veteran in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. The claims file contains the Veteran's service treatment records. The claims file also contains VA and private medical evidence. The Veteran contends that the physician who evaluated the Veteran for epididymitis in December 2008 told the Veteran that an ultrasound would be helpful in determining the nature of the Veteran's disability. The treatment records from this December 2008 private medical evaluation do not include notations in regard to the need or importance of an ultrasound. Additionally, at the Veteran's VA examination in February 2009, an ultrasound was not requested or deemed necessary. The Veteran also contends that he should be provided a new VA examination because the VA examiner relied on the Veteran's diagnosis of hypertension in determining the current nature of his testicular atrophy. The Veteran contends that he no longer has hypertension, but he does still have testicular atrophy. However, the Board notes that the Veteran's treatment records indicate he was seen for treatment for hypertension at VA as recently as January 2016. As such, the Board finds the VA examiners February 2009 opinion was adequate and no new examination was necessary. For the above reasons, no further assistance to the Veteran is required for the purposes of deciding these claims. 38 C.F.R. § 3.159(c). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). If a Veteran was exposed to an "herbicide agent," such as AO, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service-connected even if there is no in-service record of the disease in service. 38 C.F.R. § 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a Veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection is also warranted 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). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). (a) Epididymitis The Veteran was diagnosed with epididymitis in January 1971 while deployed in Vietnam. The Veteran's service treatment records (STRs) indicate that he was seen for the third time for swelling in his left testicle in January 1971. The STR's indicate, and the Veteran reports, that he had minor swelling in his left testicle on separate occasions prior to January 1971 that spontaneously resolved. However, in January 1971, the swelling was significantly more severe and did not resolve on its own. The Veteran was treated in Vietnam and ultimately transferred to a hospital in Guam for treatment. He was in the hospital for approximately one month, and in March 1971, the Veteran was discharged from service. The Veteran asserts that his epididymitis was caused by exposure to AO/herbicides while serving in Vietnam. As noted above, the Veteran's military personnel records do support that the Veteran served in Vietnam from January 1970 to March 1971, and, therefore, exposure to AO/herbicides is presumed. However, VA has determined that there is no positive association between exposure to herbicides, including AO, and epididymitis, and the Veteran has not provided any medical research or any other competent evidence to support a finding that the Veteran's epididymitis was caused by exposure to AO/herbicides while in Vietnam. 38 C.F.R. §§ 3.307, 3.309. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must still be reviewed to determine whether service connection can be granted on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection. As noted above, the Veteran's STRs indicate that he was diagnosed with epididymitis in service, meeting the second element of direct service connection, evidence of an in-service disease or injury. Service connection also requires a current disability. The Veteran was provided a VA examination in February 2009. The VA examiner noted the Veteran's in service incident, and the Veteran reported he has had a few instances of recurrent inflammation in his left testicle associated with erections since discharge from service. The Veteran was asymptomatic at the time of the examination. The VA examiner did not diagnose the Veteran with a current diagnosis of epididymitis, but did note a history compatible with left-sided epididymitis and current bilateral testicular atrophy of a slight degree, noting that the Veteran's epididymitis has been inactive for a number of years. The Veteran saw a private physician in December 2008 for the purpose of being evaluated for chronic epididymitis. These treatment records indicate that the Veteran was asymptomatic at the time of the evaluation, though the left epididymis was noted to be somewhat atrophic. The Veteran contends that after returning home from Vietnam, he did not experience an erection for two years, and his erections have been weakened since being treated for epididymitis in January 1971. Furthermore, the Veteran reports that he occasionally has swelling in his left testicle after stronger erections, but he indicated he never sought treatment because the swelling would resolve in a few days and did not involve significant pain. Finally, the Veteran reports that on self-examination he notices that the left testicle hangs lower and appears smaller than the right testicle. However, the February 2009 VA examiner noted that the Veteran has had no active treatment for and little to no recurrent symptoms from the instance of epididymitis. Furthermore, the VA examiner opined that the Veteran's current testicular atrophy is more likely related to his diagnosed hypertension and early azotemia than an endocrine abnormality. Absent competent evidence a nexus between the Veteran's current testicular atrophy and his in-service treatment for epididymitis, service connection cannot be granted. While the Veteran's contention that he believes the current testicular atrophy is related to service is sincere, he is not competent to state that the atrophy is related to his in-service epididymitis, as that required knowledge that the Veteran has not been shown to have. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied. (b) Erectile Dysfunction The Veteran contends that after being treated for epididymitis he did not experience an erection for approximately two years after discharge from service in March 1971. He further contends that he currently struggles to obtain an erection. The Veteran asserts that his erectile dysfunction is secondary to his service-connected epididymitis. However, as noted above, the Board has denied service connection for epididymitis, and erectile dysfunction cannot be service connected as secondary to a nonservice-connected disability. Despite not meeting the requirements for service connection on a secondary basis, the Board will still consider whether service connection for erectile dysfunction can be granted on a direct basis. As noted above, the Veteran contends that he currently suffers from erectile dysfunction. The Veteran's treatment records do not contain a current diagnosis of erectile dysfunction, nor is the Veteran currently taking medication to treat erectile dysfunction-despite being offered medication by a private physician in December 2008. However, the February 2009 VA examiner indicated that the Veteran did have erectile dysfunction at the time of the VA examination, despite not specifically listing it in the diagnosis section of the examination. The Board finds the first element of service connection, requiring a current disability has been met. However, the Veteran's STRs do not indicate any treatment for or reports of erectile dysfunction in service. The Board acknowledges that the Veteran contends he began experiencing erectile dysfunction immediately after discharge from service. However, the Veteran reports that he has been able to obtain erections since service, especially when he stops drinking alcohol, and the Board notes that the Veteran has fathered two children since discharge from service and turned down medication to treat erectile dysfunction in December 2008. Furthermore, at a VA examination in February 2009, the VA examiner opined that the Veteran's current erectile dysfunction is consistent with his age, not any incident, injury, or disability in service. Absent an in-service incurrence or nexus between the current disability and the Veteran's service, service connection must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied. The undersigned appreciated the Veteran's appearing to testify in connection with his two issues, and regrets that a more favorable determination could not be made. The Veteran's service to this country is very much appreciated. ORDER Entitlement to service connection for epididymitis, to include as secondary to exposure to AO/herbicides, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to epididymitis, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs