Citation Nr: 18159118 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-50 316 DATE: December 18, 2018 ORDER The petition to reopen the claim for service connection for a thoracolumbar spine disorder is granted. The petition to reopen the claim for service connection for a disorder of the right testicle is granted. The claim for entitlement to service connection for a thoracolumbar spine disability is denied. REMANDED The claim for entitlement to service connection for a disorder of the right testicle, to include epididymitis, hydrocele, and pain, is remanded. FINDINGS OF FACT 1. The Veteran’s claims for entitlement to service connection for a thoracolumbar spine disability and for epididymitis of the right testicle were denied by rating decisions in January 2012 and March 2013 respectively. Both decisions were not appealed. 2. Since the January 2012 and March 2013 rating decisions evidence was added to the record which was not previously considered by agency decisionmakers and which relates to an unestablished fact necessary to substantiate the claims. 3. A preponderance of the evidence of record establishes that the Veteran’s current thoracolumbar disability is less likely than not causally related to an in-service injury. CONCLUSIONS OF LAW 1. The January 2012 and March 2013 rating decisions denying the Veteran’s claims for entitlement to service connection for a thoracolumbar spine disability and for epididymitis of the right testicle are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence added to the record since the January 2012 and March 2013 rating decisions is new and material, and the claims for entitlement to service connection for a thoracolumbar spine disability and for epididymitis of the right testicle are reopened. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). 3. The criteria for a thoracolumbar spine disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 U.S.C. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from January 1981 to October 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran contends that he suffers from a thoracolumbar spine disability due to injuries sustained to his back throughout service, and that his epididymitis was caused by service. Petitions to Reopen Prior to the instant claims, rating decisions from January 2012 and March 2013 denied the Veteran’s claims for service connection for a thoracolumbar spine disability and for epididymitis, respectively. These previous rating decisions were not appealed and therefore are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Claims denied by a final decision normally may not be reopened, but an exception exists if a veteran submits new and material evidence. 38 U.S.C. § 5108(a). “New” evidence means evidence not previously submitted to agency decisionmakers, and “material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The phrase “raises a reasonable possibility of substantiating the claim” is a “low threshold” that “must be viewed as enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In both the January 2012 and March 2013 rating decisions, the ROs denied the respective service-connection claims for lack of evidence establishing that the Veteran suffered from a current disability. Since the January 2012 rating decision was issued, of record are August 2016 results of imaging and a diagnosis of degenerative changes of the Veteran’s entire spinal canal. Since the March 2013 rating decision was issued, of record is a May 2015 treatment record noting that the Veteran said he was told he was diagnosed with a hydrocele, as well as a May 2016 treatment record indicating that the Veteran experiences chronic right testicular pain. For both claims, these pieces of evidence were not previously considered by agency decisionmakers, and they relate to the unestablished element in each claim of a current disability. The Board finds that for both claims there is new and material evidence, and in turn the Board will grant the Veteran’s application to reopen the claims for service connection for a thoracolumbar spine disability and for a disorder of the right testicle. 38 C.F.R. § 3.156; see Shade, 24 Vet. App. at 121. Service Connection for Thoracolumbar Spine Disorder Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. That an injury or disease occurred in service is not enough; there must be disability resulting from that injury or disease. 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). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.304. The Veteran’s service treatment records (STRs) show that the Veteran had back pain in January 1981 that was diagnosed as overuse syndrome. The Veteran reported falling off a ladder in approximately December 1981, though his complaints were limited to his knee. An examination during the Veteran’s service in April 1982 found the Veteran’s back normal, and the Veteran reported that he was in good health and without back problems. In June 1983 the Veteran complained of left lower back pain, which was diagnosed as a muscle strain. At an October 1983 medical examination in connection with separation from the military the Veteran reported no back pain and that he was in good health, and the examiner found his spine to be within normal limits. At an updated separation examination in December 1983 the Veteran maintained that he still suffered no back problems and was still in good health. A March 2009 general note in connection with the VA job establishment program reflected having interviewed the Veteran but did not indicate that the Veteran had reported experiencing any spine symptoms. The note concluded that the Veteran had no functional limitations. A record from a primary care visit in January 2010 noted that the Veteran admitted to having done a lot of manual labor for most of his life. In connection with his original claim for service connection, the Veteran was afforded a VA examination in December 2011. The examiner found that the Veteran’s STRs showed a well-documented and consistent pattern of injury to his lumbosacral spine and on this basis concluded that the Veteran’s condition was at least as likely as not caused by service, though there was no further reasoning accompanying this conclusion. In connection with the claim underlying the current claim for service connection, the Veteran was afforded a VA examination in September 2016. The September 2016 VA examiner comprehensively reviewed the Veteran’s STRs and recorded a thorough interview with the Veteran about his history. The Veteran reported to the examiner multiple incidents injuring his back, including an incident in boot camp in which while the Veteran stretched in a forward bend another person pushed his head past the limit of the Veteran’s own ability to bend; an incident in which the Veteran was injured after falling from a ladder; several times during which the Veteran had to carry by himself a heavy drill pump meant to be carried by two people; and, the Veteran’s general job duties in service, which involved bending plus lifting and moving heavy supplies. The Veteran’s post-service work history involved twenty years at a factory in which one of his roles reportedly required extensive upper-body movement. The September 2016 examiner noted that though the Veteran reported to sick call for back pain once in 1981 and once in 1983, there was no record of either incident requiring a follow-up evaluation or treatment. The examiner observed that the Veteran’s reports at the 1983 separation examinations that he was not experiencing recurrent back pain at that time, and that there was no record until 2010 of treatment sought for the claimed history of chronic and progressive spine symptoms. The examiner also noted the 2009 document in which the Veteran had not reported having a functional limitation to working. Given these facts the September 2016 examiner reasoned that the Veteran’s thoracolumbar spine disorder was attributable to progressive osteoarthritis, obesity, and having performed manual labor jobs in his post-service career. A September 2014 letter from the Veteran’s mother recalled that while he was in service the Veteran told her he had been having a lot of problems with his back, legs, groin, and breathing. She remembered him describing the incident in which his head was pushed such that his back bent beyond its natural limit. Turning to the merits of entitlement, the Board first finds that the evidence establishes that the Veteran suffers a current disability of degeneration in his thoracolumbar spine. Among many other treatment records evidencing that the Veteran has sought treatment for and has been diagnosed with a thoracolumbar back disability, an August 2016 record stated that the Veteran suffers degenerative changes of his thoracic and lumbar spine. The Board next finds that the evidence supports that the Veteran suffered injuries while in service. STRs reflect that the Veteran reported to sick call multiple times after having fallen off a ladder. Additionally, the Veteran told the September 2016 examiner that his head had been forcibly pushed beyond the limits of his own ability to bend forward, and this episode is corroborated by the Veteran’s mother remembering the Veteran telling her about this incident. The Veteran and his mother are competent to report these facts, Barr. v. Nicholson, 21 Vet. App. 303, 307-08 (2007); 38 C.F.R. § 3.159(a)(2), and the Board finds them credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board finds, however, that the evidence of record is against the existence of an etiological relation between the Veteran’s injuries in service and the current disability. Though the December 2011 VA examination found an etiological connection at least as likely as not, its reasoning for such conclusion simply referred to a pattern in the STRs without any further specificity or rationale. The September 2016 VA examination, on the other hand, meticulously detailed the reasons and bases for its opinion that the Veteran’s current disability was less likely than not due to service. The Board finds the September 2016 examination of more probative value than the December 2011 examination, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Having considered the totality of both the new and the previously considered evidence of record, the Board finds that there is a preponderance of the evidence against the existence of a nexus. 38 U.S.C. § 1131; 38 C.F.R. § 3.304. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, and finds that because the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable in the instant appeal. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges the statement of the Veteran’s representative arguing for service connection under a theory of aggravation of a pre-existing thoracolumbar condition. The Board notes, however, that the Veteran’s January 1981 enlistment examination found the Veteran’s spine within normal limits and no spine disorder was noted, and therefore the presumption of soundness applies. 38 U.S.C. § 1132. Further, there is no evidence of record sufficient to rebut the presumption, and therefore service connection on the theory of aggravation of a pre-existing condition is inapplicable. See 38 U.S.C. § 1131. REASONS FOR REMAND Service Connection for Disorder of the Right Testicle The Veteran has reported that he first began experiencing symptoms in the right testicle while in service, and he has indicated that he has had ongoing right testicle problems ever since separation. Treatment records from the month after the Veteran’s separation show that he sought treatment for symptoms in the groin, and in January 1984 he underwent imaging after still experiencing aches in the testicle. Complaints of the same nature were recorded in April 1984 and October 1984. Recent treatment records reflect that in September 2010 the Veteran reported a history of chronic epididymitis in the right testicle, while the medical professional noted the Veteran had a small hydrocele. In June 2011 the Veteran denied experiencing testicle pain. Later that year in November, the Veteran stated that the right testicle bothered him intermittently. In July 2014 a medical professional treating the Veteran for complaints of testicle pain remarked that the pain could be related to disk bulges. In August 2014 treatment records again record testicular pain. In May 2015 the Veteran was recorded as having stated that he had been diagnosed with a hydrocele in the right testicle. June 2015 treatment records listed the Veteran’s medical problems as including chronic testicular pain. Although the Veteran has claimed service connection for epididymitis of the right testicle, the evidence demonstrates that the scope of the claim should be construed more broadly as a disorder of the right testicle, to include epididymitis, hydrocele, and chronic pain. See Clemons v. Shinseki, 23 Va. App. 1 (2009). The Board has recharacterized the issue accordingly. The Board notes that the Veteran has not yet been afforded a VA examination regarding this disorder, and that the evidence of record is insufficient for the Board to make a fully-informed decision. Thus, a VA examination and nexus opinion must be provided. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, the Board notes that while “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability,” “to establish the presence of a disability a veteran will need to show that h[is] pain reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Though both medical and lay evidence may be considered in determining whether pain reaches the level of functional impairment, no such evidence is of record. Therefore, the Board will remand for an assessment regarding whether the Veteran’s claimed chronic pain in the right testicle functionally impairs his earning capacity. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disorder of the right testicle, to include epididymitis or hydrocele. The examiner must opine whether any condition diagnosed is at least as likely as not related to an in-service injury, event, or disease. The examiner must also determine whether the Veteran has any functional limitation due to pain concerning the right testicle. If so, the examiner must opine whether it is at least as likely as not that such functional limitation is due to or the result of any incident of his military service. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Davis, Associate Counsel