Citation Nr: 1801942 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-16 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a right orchiectomy, to include a neurological impairment of the lower extremity, other than a scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2015, the Board remanded the appeal for further development. The RO bifurcated the Veteran's claim and granted service-connected for a scar secondary to his orchiectomy in August 2015, and denied residuals of a right orchiectomy, to include a neurological impairment of a lower extremity, other than a scar in a May 2016 supplemental statement of the case. After further development, the issue on appeal is now ready for adjudication. FINDING OF FACT The Veteran does not have current residuals from a right orchiectomy, to include lower extremity neurological impairments. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a right orchiectomy, to include a neurological impairment of a lower extremity, other than a scar, have not been met. 38 U.S.C §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Veteran is claiming entitlement to service connection for residuals of a right orchiectomy, to include a neurological impairment of the lower extremity, which he asserts are related to active service. Specifically, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Upon review of all evidence of record, the Board finds that the Veteran's service connection claim must be denied. While the Veteran's service treatment records reflect that he had a right orchiectomy in-service, the post-service medical records are negative for any residuals relating to his orchiectomy (other than a scar for which the Veteran is already service connected). Specifically, the January 2013 and August 2015 VA examiners opined that aside from a scar, the Veteran did not have any diagnosable residuals from his right orchiectomy. Therefore, service connection is not warranted for a tibia disorder and/or residuals thereto. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Alternatively, the VA examiners opined that to the extent the Veteran is experiencing neurological complaints such as voiding dysfunction and pain in his lower extremity, these symptoms are not caused by his orchiectomy. Specifically, the January 2013 and August 2015 VA examiners, opined that the Veteran's voiding dysfunction is related to his nonservice connected benign prostatic hyperplasia and age. Moreover, in citing the current medical research, the August 2015 examiner noted that an orchiectomy "unless performed totally improperly, would not involve male genitourinary organs responsible for urinary function." Thus, given that there was no evidence of an "improper" surgery, the Veteran's voiding symptoms are not related to his orchiectomy. With respect to the Veteran's lower extremity pain and weakness, the medical evidence, including treatment records from January 2006 and April 2007, as well as the aforementioned VA examinations, indicate that the Veteran's lower extremity pain and radiculopathy is related to his service-connected back disorder. Therefore, given that he is service connected for a back disorder, he is already receiving compensation for lower extremity symptoms including pain, weakness, fatigability, etc. As such, it would be improper pyramiding to grant service-connection for a disorder that manifests with the same or similar symptomatology of a current service-connected disability. See 38 C.F.R. § 4.14. The Board also acknowledges the statements from the Veteran regarding a diagnosis and the etiology of his neurological disorders, including voiding dysfunction and lower extremity impairment, which he asserts was caused by active duty service. A lay person is competent to report observable symptomatology, such as pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, the diagnosis and etiology of dysfunctions and disorders of this complex type is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that he has a neurological disorder and/or that it may be the result of service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis or nexus opinion regarding the etiology of his disorder. His opinion in this regard is not competent evidence. As a result, the Board concludes that the preponderance of the evidence is against the claim for service connection, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. As discussed below, the Veteran has also been provided with an adequate VA examination per the Board's June 2015 Remand instructions. Finally, it is noted that this appeal was remanded by the Board in June 2015 to obtain a new VA examination. As such, the Board is now satisfied there was substantial compliance with the Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided with a VA examination in August 2015, and the examination report is sufficient for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited 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). ORDER Service connection for residuals of a right orchiectomy, to include a neurological impairment of the lower extremity, other than a scar, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs