Citation Nr: 1805062 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-21 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left testicle disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In March 2016, the Board recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder, so as to allow for consideration of all psychiatric diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In March 2016, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder, a left leg disability, a left hip disability, a skin disability, and a low back disability for further development. While in post-remand status, the Appeals Management Center issued an August 2016 rating decision awarding service connection for iliopsoas tendonitis (claimed as left hip condition), lumbar degenerative joint disease, and neurodermatitis of the dorsum of the right foot, tinea pedis, and tinea unguium. The Veteran did not submit a Notice of Disagreement with the disability ratings or effective dates assigned for these grants of service connection, and the issues are not in appellate status at this time. The issues of entitlement to service connection for an acquired psychiatric disorder and a left leg disability have been returned to the Board for appellate consideration. Also in March 2016, the Board issued a decision denying the Veteran's claim for entitlement to service connection for a left testicle disability. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court), and in a June 2017 Memorandum Decision, the Court vacated the March 2016 Board decision on the issue and remanded the matter to the Board for further development. The issues of entitlement to service connection for a left testicle disability and an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence does not demonstrate that the Veteran has had a left leg disability during the appeal period. CONCLUSION OF LAW The criteria for entitlement to service connection for a left leg disability have not been met. 38 U.S.C. §§ 101, 1110, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Evidence must show that the Veteran has the disability for which benefits are being claimed. See 38 C.F.R. § 3.303. The requirement of a current disability is satisfied if the claimant has the disability at some point during the pendency of the claim, even if it should resolve prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Indeed, even when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he or she is an interested party, the claimant's interest may affect the credibility of his or her testimony when considered in light of the other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the claims file. The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran previously clarified that he was seeking service connection for a left leg condition, as well as low back and left hip pain. A private physician statement was submitted in September 2010, in which she indicated that the Veteran injured his left testicle and leg in service, and experienced continued leg pain with limping and constant left hip pain. Pursuant to the March 2016 Board remand, the Veteran was provided with VA examinations pertaining to his left leg and left hip disabilities in April 2016. For the left hip examination, the examiner diagnosed iliopsoas tendonitis, related to the Veteran's in-service fall and left hip pain at the groin area. Service connection has since been granted for iliopsoas tendonitis. With regard to a separate left leg disorder, at the examination, the Veteran denied that he suffered from any current left knee or lower leg disorder related to service. Due to this statement, the examiner found that further examination was not needed. Review of the Veteran's VA treatment records and lay statements and arguments submitted by the Veteran's representative do not reveal complaints or treatment concerning a left leg disorder separate from the left hip disability which has previously been awarded service connection. A preponderance of the competent evidence of record demonstrates that the Veteran has not had a left leg disability (other than the service-connected left hip disability) at any point during the relevant appeal period; the first criterion for service connection, the presence of a current disability, has therefore not been met. Inasmuch as the evidence does not show that the Veteran has the disability for which benefits are being claimed, the claim must be denied. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Degmetich v. Brown, 104 F.3d at 1332. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as a preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left leg disability is denied. REMAND Although the Board regrets any additional delay, further development is needed prior to adjudication of the remaining appeals. As highlighted in the Court's June 2017 Memorandum Decision, there remain VA treatment records that have not been associated with the Veteran's claims file. Specifically, the May 2014 Statement of the Case indicates that outpatient and inpatient treatment records from San Juan VA Medical Center from August 1997 to July 2011 were reviewed and considered by the RO, but were not printed and added to the claims file. As the Board is unable to review these records, and the question of whether the Veteran has had a current disability manifesting in left testicle pain at any point during the appeal period remains at issue, action should be taken on remand to associate these records with the file. Following the Court's June 2017 Memorandum Decision, the Veteran's representative submitted a brief in October 2017 asserting that the December 2010 VA examiner failed to provide an explanation of how a finding of lesions consistent with spermatoceles in a 2010 ultrasound was consistent with the conclusion proffered that the Veteran had normal testicles and epididymis. If the Veteran in fact has had a current disability manifesting in left testicle/scrotal pain at any point during the appeal period, an etiological opinion would need to be provided. On remand, a supplemental opinion should be provided concerning these questions. The Board further notes that the symptoms and findings documented in the April 2016 VA examination concerning the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder differ greatly from those documented in the February 2011 examination report, and are contradicted by the private physician opinion submitted in September 2010. The April 2016 examiner opined that the Veteran's unspecified depressive disorder was not related to, incurred during, or associated in any way with his military service. The examiner stated a rationale that there was no evidence of psychiatric complaints, findings, or treatment during or within one year of service, and that the Veteran did not seek formal psychiatric treatment until more than 40 years after discharge. However, as this rationale is contradicted by evidence of record indicating that the Veteran was put on profile during service for an "emotional disorder," documenting the Veteran's report of having nervous trouble on his separation report of medical history, and including an April 1973 VA examination finding that the Veteran suffered from hysterical neurosis mixed conversion and anxiety type, with a documented history of conversion manifestation during service, the April 2016 examiner's opinion is based on an inaccurate factual premise and is of limited probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). That being said, the February 2011 examination does not contain an opinion concerning the etiology of the diagnosed anxiety disorder, not otherwise specified, and the September 2010 private physician opinion lists a large number of symptoms in a very general sense that have not been reported elsewhere either in reports to medical professionals or in lay statements made to the VA submitted by the Veteran or his representative. On remand, an additional VA examination and etiological opinion should be sought concerning the nature and etiology of the Veteran's acquired psychiatric disorder. Accordingly, the claims are REMANDED for the following action: 1. Obtain any and all of the Veteran's outstanding VA treatment records, including but not limited to those from August 1997 to July 2011 noted in the "Evidence" section of the May 2014 Statement of the Case and any from June 2017 to the present, and associate them with the claims file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. After associating all responsive documents with the claims file, schedule the Veteran for an additional VA examination pertaining to his claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. The claims folder must be made available for review. Any indicated tests and studies must be completed. Following examination of the Veteran and review of the claims file, the examiner should address the following: a. Identify a diagnosis for any acquired psychiatric disorder present at any point during the relevant appeal period (September 2010 to present). b. For any psychiatric disorder identified above, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability arose during or is otherwise related to the Veteran's military service. *In responding to the above, the examiner should discuss, and reconcile to the extent possible, the conflicting evidence contained in the April 2016 and February 2011 VA examinations and the September 2010 private physician opinion. *The examiner's attention is further directed to an April 1970 service treatment record documenting that the Veteran was put on profile for an "emotional disorder," a notation on his April 1971 separation report of medical history that he was experiencing nervous trouble, and an April 1973 VA examination finding that the Veteran suffered from hysterical neurosis mixed conversion and anxiety type with a history of conversion manifestation during service. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner should consider the full evidence of record, and not limit their review to the specific evidence highlighted by the Board in these remand instructions. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After completing the development requested in Part 1, above, refer the Veteran's claims file to an appropriate medical professional ("reviewer") for a supplemental opinion concerning the nature and etiology of a disability manifesting in the Veteran's claimed left testicle pain. The reviewer must be given full access to the Veteran's complete VA claims file, including a copy of this remand, and the Veteran's electronic records for review; the reviewer must specifically note on the report whether these were reviewed in connection with providing this supplemental medical opinion. If, after review of the file, it is determined that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The reviewer should then provide an opinion as to the following: a. Provide a diagnosis for any disability manifesting in left testicle pain that has existed at any time from September 2010 to the present. If the Veteran's reported left testicle pain is found to represent a symptom or residual of a service-connected disability, such as iliopsoas tendonitis, left, without a separate diagnosable disability, the reviewer should so state. b. For any diagnosis identified above, please provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability arose during or is otherwise caused by an injury, event, or illness during the Veteran's active military service. The examiner's attention is particularly directed to service treatment records ranging from January 1970 to January 1971 documenting the Veteran's repeated complaints of left testicle/groin pain since a fall in the Republic of Vietnam resulting in him being medevacked out of country. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The reviewer should consider the full evidence of record, and not limit their review to the specific evidence highlighted by the Board in these remand instructions. The reviewer must include in the medical report the rationale for any opinion expressed, along with citation to specific evidence in the claims file and relevant medical treatise evidence as necessary. However, if the reviewer cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the reviewer (i.e. additional facts are required, or the reviewer does not have the needed knowledge or training). 4. Thereafter, review the requested medical opinion reports to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. 5. After completing all the above, conduct any further development deemed necessary in light of the expanded record then readjudicate the Veteran's claims of entitlement to service connection for a left testicle disability and an acquired psychiatric disorder, to include PTSD. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs