Citation Nr: 1805581 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-27 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for residuals of a left testicle injury. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Navy from August 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The August 2012 rating decision denied the Veteran's claim for service connection for a left testicle injury. Within one year of notice of the denial the Veteran provided medical evidence which was new and material to the issue. As such, the August 2012 rating decision did not become final, and is considered the rating decision on appeal. A March 2014 rating decision continued and confirmed the prior denial. The Veteran submitted a timely notice of disagreement with the March 2014 rating decision. The Veteran and his wife appeared and testified at a May 2014 DRO hearing, and a September 2017 Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are contained in the record. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, he has current residuals from an in-service left testicle injury, to include a swollen left testicle, a scar on his left testicle, and tenderness to his left testicle and a lump on his penis. CONCLUSION OF LAW Entitlement to service connection for residuals of a left testicle injury is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Given the Board's favorable disposition of the service connection claim, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. 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 military 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). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, an injury to the left testicle is not a chronic condition listed under 38 C.F.R. § 3.309 (a). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Factual Background and Analysis In July 2011, the Veteran filed a claim of entitlement to service connection for a left testicle injury with scar. His claim was initially denied in an August 2012 rating decision because his service treatment records were silent for a left testicle injury. A July 2013 VA treatment note included the Veteran's report of medical history of a "scrotum injury in service, with scars." In August 2013, the Veteran submitted a private treatment record from Dr. B.K. The Veteran reported a history of being hit in the scrotum at age 18 with a piece of plywood. He stated his scrotum was lacerated and his left testicle was "hanging out." He was seen by a doctor who pushed the testicle in and sewed the scrotum closed. The veteran stated that since the injury he has had a hard lump at the base of his penis, which bothers him, with occasional discomfort and pain. On physical examination, the Veteran had a mass on the proximal dorsal shaft. The lump was movable, not fixed to the skin, and tender when squeezed. In May 2014, the Veteran and his wife testified at a DRO hearing. The Veteran noted that he was aboard the USS Ajax, using a bow hook to take the fender off of the liberty boat. He stated the boat had flat floors, and as he was walking forward the floor came up and flipped in between his legs. He stated after he was hit, he was lying on his back, and when he reached into his pants, his hand came out covered in blood. They turned the liberty boat around and took him to sick bay. He was seen by someone in sick back who put three stitching in his left groin after he pushed the testicle back into the scrotum. He was then given some kind of wrap to keep it in place for 10 days. He said he was on "no duty" for a few days, and light duty for a week. Then the stitches were taken out. The Veteran stated he complained of swelling and a bulge in his penis. The doctor, or whoever took his stitches out, stated that he would have some swelling but that it would go away. He had no additional treatment, and did not bring up his injury to anyone due to the embarrassing nature of the injury. The Veteran thought the injury happened in 1964, maybe summer of 1964. His wife was at the hearing, and noted they had been together for 47 years. She stated she was aware of the injury, but that the Veteran did not give her many details. She thought that perhaps the reason they only had one child was because of his injury. She stated she was aware of his residuals of a left testicle injury (referred in the transcript, by the DRO asking questions, as "it") for the roughly 47 years they had been together. The DRO noted that this would have been only 3 years after his discharge. The Veteran stated that when the injury happened, the Chief Boatswain Mate said that it was lucky he had two testicles, "at least God gave you the second...you can still produce children." In July 2014, the Veteran was afforded a genitourinary examination. The examiner found that the Veteran's left testicle was larger than his right testicle, and that his right testicle was "normal size." He also had a small left scrotum scar, and a small "bump" palpable at the deep base of the dorsum penis. His left testicle is larger than his right and is irregular. The examiner noted the Veteran had children, so this did not impact his fertility. The examiner noted the Veteran had "no complaints" at the time of the examination. The examiner also noted that the Veteran did not have a "genitourinary disability." The examiner reviewed his available records, and noted that he could not say, without speculation, if the Veteran's current left testicle enlargement, bump on his penis, and scar were due to in-service injury. The examiner noted that an injury such as the Veteran described, with his testicle protruding, would have been documented in his service treatment records. Additionally, the Veteran stated that he did not see anyone else for this issue after service. "The lack of records is concerning. Even though he has a small scar and appears to have an enlarged testicle on the left, it would be resorting to speculation to specifically state any current findings are specifically due to a claimed injury in service." Also in July 2014, the Veterans submitted a statement that he was "razzed" about his injury by his shipmates, given the intimate nature of the injury. In September 2017, the Veteran attended a Board hearing, accompanied by his wife. He testified that he continued to have residuals from his in-service injury. He described a lump at the base of his penis, and that "psychologically, [he] thinks about it about every day, every other day." He also reported tenderness in the area for the past 50 years. The injury occurred when the Veteran was walking with a bow hook to take a fender off the front of the boat, and a "floorboard flipped up, [his] feet went down the bilge and the board stopped [him]." He stated he was taken aboard the Ajax and saw a doctor in sick bay. When he pulled his pants down, his left testicle dropped to such a degree that he felt he had to "catch it." The doctor then pushed the left testicle up into the scrotum and put three stitches in it. He was not given a pain shot, as the doctor said that the shot would hurt more than the stitches. He was then given support to wear for 14 days. After 14 days he had the stitches removed. The Veteran reported he had swelling and a lump at the base of his penis, about the size of a pencil head. The Veteran testified that the doctor told him that he was going to have "lumps and bumps." After his stitches were removed, he did not see the doctor again. The Veteran reported that he continued to have swelling, and he was given an examination in July 2014, and the examiner noted he saw the swelling and stiches, and felt the lumps and bumps at the base of the penis. The Veteran reported that he had "some pain" "off and on," and that it is tender if he "goes to scratch it or something." The Veteran stated that his testicles were the same size when he entered service, but his left testicle has been larger since the injury. During the injury, the Veteran stated that his full weight was on his left testicle. He believed the injury occurred in October 1965, but his wife stated it was 1964. The Veteran then stated he was aboard the Ajax when it occurred. The Veteran testified that he has had an enlarged left testicle and the lump on the base of his penis from his injury to the present. The Veteran stated that his private physician, B.K., agreed that his current left testicle and penis symptoms are due to his in-service injury, and that he saw the physician in August 2013. Notably, the VA examiner found that he could not relate the Veteran's left testicle size, scar, and lump on his penis to his service because the service treatment records did not include a notation of the injury, despite the severity of the injury. Additionally, the RO has denied the claim for the same reason. The Board has reviewed the service treatment records contained in the claims file. The records include the Veteran's 1963 enlistment medical history and examination, and his 1966 separation medical examination. His 1966 medical history is missing. Additionally, the Board observes that there are no service treatment records at all between September 1963 and January 1965. The January 1965 record is a chest x-ray stamp. There are no handwritten treatment records (records other than x-ray and vaccinations) between September 1963 and May 1965. On his claims form and during his 2014 DRO hearing, the Veteran indicated that the injury occurred in 1964. Given that there is such a large gap in time in his treatment records, and that his 1966 separation medical history is missing, the Board finds that relying on a lack of service treatment records to confirm the Veteran's history of a left testicle injury is an error. The Veteran has provided consistent, competent, and credible statements and testimony regarding the injury he suffered in service. He recalls details of the injury and how he was treated. He recalls the name of the man who was with him during the injury and testified in 2017 that he had attempted to contact that man, and other shipmates to see if anyone could confirm his story to the VA. Additionally, the Veteran has physical indications that he did suffer an injury to his left testicle, in that he has a scar on his left testicle, and his left testicle is enlarged. Given that it appears his service treatment records are incomplete, he has provided credible testimony regarding his injury, his wife has stated that he has had these residuals for the entirety of their relationship (greater than 50 years) and he currently has observable symptoms (scar, swelling, and lump) that support his report of injury and residuals, the Board will resolve reasonable doubt in the Veteran's favor. Entitlement to service connection for residuals of a left testicle injury is warranted. ORDER Entitlement to service connection for residuals of a left testicle injury is granted. ____________________________________________ G.A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs