Citation Nr: 1816622	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO. 14-26 175	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Whether new and material evidence has been submitted to warrant reopening the claim of service connection for epididymitis.

2. Whether new and material evidence has been submitted to warrant reopening the claim of service connection for an acquired psychiatric disorder.

3. Entitlement to service connection for epididymitis.

4. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to epididymitis.


REPRESENTATION

Veteran represented by:	John S. Berry, Esq.



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1977 to November 1977. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In April 2016, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file.

The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In a February 2002 rating decision, the RO denied the Veteran's claims for service connection for epididymitis and an acquired psychiatric disorder. The Veteran did not perfect this appeal, and that decision is final

2. The evidence associated with the claims file since the February 2002 rating decision included medical evidence indicating a connection between current the epididymitis and active duty service; and the existence of a current psychiatric disability related to the epididymitis.

3. The evidence of record shows that the Veteran's epididymitis is etiologically related to his active duty service.


CONCLUSIONS OF LAW

1. The February 2002 RO rating decision is final with respect to entitlement to service connection for a epididymitis and an acquired psychiatric disorder low. 38 U.S.C. § 7105(West 2012); 38 C.F.R. § 20.1103 (2017).

2. The criteria for reopening the claims of entitlement to service connection for epididymitis and an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017).

3. Resolving all doubt in favor of the Veteran, the criteria for service connection for epididymitis have been met.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Claims to Reopen Based on New and Material Evidence

The Veteran seeks to reopen his claims for service connection for epididymitis and an acquired psychiatric disorder.

VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. 
§ 3.156 (a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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).

In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996).

In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. 

Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

Here, the Board finds that new and material evidence has been received sufficient to reopen the Veteran's claims. The RO denied service connection for epididymitis and an acquired psychiatric disorder in February 2002, citing that there was no evidence the Veteran had a permanent epididymitis disability, nor that his acquired psychiatric disorder occurred in or was caused by service. The evidence of record at the time of the February 2002 rating decision included the Veteran's service treatment records, VA treatment records, and personal statements. The Veteran did not perfect his appeal following the January 2003 Statement of the Case; and therefore, the February 2002 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

Since the February 2002 rating decision, the Veteran's VA treatment records reflecting treatment for epididymitis and an acquired psychiatric disorder have been associated with the claims file. A September 2017 letter from the Veteran's VA physician indicates that the Veteran's epididymitis is a permanent condition that he has experienced since service. A May 2010 VA treatment record notes that the Veteran reported his epididymitis and subsequent infertility have caused his depression. VA mental health clinical records since that time show that he continues to be followed for major depression and PTSD stemming from his epididymitis. The evidence is new because these records had not yet been received by the RO in adjudicating the Veteran's claims. The evidence is material because it relates to unestablished facts that are necessary to substantiate the claims. Specifically, the new evidence tends to show that the Veteran has a permanent epididymitis disability that has caused his acquired psychiatric disorder. Together, the evidence suggests that the Veteran's epididymitis may be related to service and that his acquired psychiatric disorder may be related to his epididymitis.

Regarding the newly submitted evidence, the Court has held that 38 C.F.R. 
§ 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade, 24 Vet. App. at 117-18. Given this standard, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the February 2002 decision is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for a spinal disc rupture.

Accordingly, the Veteran's claims of entitlement to service connection for epididymitis and an acquired psychiatric disorder are reopened.

Service Connection for Epididymitis

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In rendering a decision on appeal, the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. 

The Veteran contends his epididymitis manifested in service due to a groin injury. The evidence is in relative equipoise and the Veteran's claim will be granted.
The Veteran demonstrates a current disability. In a September 2017 letter, the Veteran's VA physician opined that the Veteran's epididymitis was a permanent condition. The Veteran's service treatment records document several complaints of groin pain. The Veteran was diagnosed with epididymitis in October 1977. 

Upon consideration of the evidence of record and the applicable laws and regulations, the evidence is in relative equipoise that the Veteran has experienced epididymitis since service. 

In this regard, the Veteran's VA treatment records reflect ongoing treatment for testicular pain and epididymitis. The Veteran's VA physician opined in September 2017 that the Veteran's epididymitis is a permanent disability that he has experienced since his in-service injury. The physician notes that the Veteran's epididymitis has caused him significant pain in discomfort, and that the Veteran has been seen and treated regularly by VA for this condition. Although the May 2011 VA examiner opined that the Veteran did not have a current diagnosis of epididymitis, the examiner did not discuss the Veteran's VA treatment records, reflecting ongoing treatment for testicular pain and epididymitis. Accordingly, the May 2011 VA examiner's opinion is not sufficient as it does not consider all the relevant evidence that the Board has presumed credible. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premises are not probative).

Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for epididymitis have been met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Duties to Notify and Assist

The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The issues of new and material evidence to reopen claims for service connection for epididymitis and an acquired psychiatric disorder, as well as service connection for epididymitis have been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of these issues, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 


ORDER

Reopening of the claim of entitlement to service connection for epididymitis is granted. 

Service connection for epididymitis is granted.

Reopening the claim of service connection for an acquired psychiatric disorder, as due to service-connected epididymitis, is granted.


REMAND

In view of the circumstances of this case, as discussed above, additional development is needed before the reopened claim of entitlement to service connection for an acquired psychiatric disorder, as secondary to service-connected epididymitis, may be adjudicated.  Specifically, the Veteran should be afforded a VA examination in determining the nature and etiology of any diagnosed acquired psychiatric disorder. 

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran identify and secure any outstanding VA or private medical records. Attempt to obtain any records identified by the Veteran and associate these records with the claims file.

2.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed psychiatric disability. 

The VA examiner is requested to offer the following opinions:

a)  Whether it is at least as likely as not that the Veteran suffers from a psychiatric disorder? Why or why not?

b)  If the Veteran is currently diagnosed with a psychiatric disorder, please address whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's acquired psychiatric disorder is proximately due to or the result of his service-connected epididymitis. Why or why not? or;

c) If the answer to this question is negative, whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's nonservice-connected acquired psychiatric disorder has been aggravated by his service-connected epididymitis (i.e., the existing acquired psychiatric disorder increased in severity proximately due to or the result of the service-connected epididymitis beyond the natural progression of the disease). Why or why not?

All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

3.  After completion of the above and any other appropriate development deemed appropriate, readjudicate the issue on appeal on the basis of the additional evidence. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter 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).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs