Citation Nr: 1823915 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 13-05 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right eye disorder. 2. Entitlement to service connection for a testicular disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from March 1974 to August 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This claim was previously before the Board in February 2017, at which time it was remanded for additional development. The issue of entitlement to service connection for a right eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The preponderance of the evidence is against a finding that a testicular disorder is the result of a disease or injury in active duty service. CONCLUSION OF LAW The criteria for service connection for a testicular disorder have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2017). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in October 2010. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the May 2017 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Finally it is noted that this appeal was remanded by the Board in February 2017 in order to afford the Veteran a new VA examination and to obtain any outstanding medical records. The Board is now satisfied that there was substantial compliance with this remand. See Stegall v. West, 11 Vet. Ap. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was afforded a VA examination in April 2017, which the Board finds adequate for adjudication purposes. Accordingly, the Board finds that the remand directives were substantially complied with, and, thus, there is no Stegall violation in this case. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection for a disability, a Veteran 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, 38 F3d 1163 (Fed. Cir. 2004). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A June 2003 urology noted found that both the Veteran's testicles were normal in size. The examiner noted a 6 millimeter cyst in the head of the right epididymis. The Veteran was diagnosed with a right epididymis cyst, and the examiner indicated that it was long standing by history. The Veteran submitted his Substantive Appeal, VA Form 9, in February 2013 and indicated that his testicle pain started while in basic training. He had testicle pain with swelling the entire time he was in the military, and he was treated with a support. Pursuant to the February 2017 Board remand, the Veteran received a medical opinion in April 2017 at which time the examiner noted the epididymis cyst diagnosis. The examiner considered the Veteran's medical records and statement and found that the condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that epididymis cysts were benign, fluid-filled sacs that were common. There was no evidence of cysts in the Veteran's service treatment records, although he had acute pain in his testicles in 1974 that resolved without any follow-up or evidence of a mass. Furthermore, the Veteran's separation examination was normal. The examiner noted that the Veteran reported testicle pain since service, but found that it was unlikely due to a cyst, as there was no evidence of cysts during service and cysts typically do not cause symptoms, especially when small. The Board finds the April 2017 VA examination results to be the most probative evidence of record. The examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's testicular disorder and its lack of connection to service. Although the examiner confirmed that the Veteran had an epididymis cyst, he provided opinions explaining why it was less likely than not that the Veteran's disabilities were the result of his military service. He also provided opinions on the cause of the Veteran's documented testicular pain during service, and indicated that it was not related to his current diagnosis. The Board also considered the Veteran's statements that he had testicular pain since service, and the Board finds his statements credible. However, the Veteran is not competent to offer an opinion on the etiology of his epididymis cysts, as he does not have the requisite medical expertise to provide a link between them and service. The Board assigns a higher probative weight to the competent medical evaluations from service and afterwards. In sum, the most probative evidence of record-the service treatment records and April 2017 VA opinion-show no link between his testicular disorder and an event, injury, or disease in service. Therefore, the criteria for service connection have not been met and the Veteran's claim is denied. ORDER Entitlement to service connection for a testicular disorder is denied. REMAND The Veteran was afforded a VA examination addendum in March 2017 for his right eye, and the examiner opined that the Veteran had a posterior staphyloma of the right eye which was a congenital anomaly and therefore pre-existed service. The examiner concluded that the congenital condition was present before service and was unchanged by service. However, the examiner did not specifically determine whether this condition was a congenital disease process, a congenital defect or abnormality, or acquired. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Veterans can be granted service connection for diseases (but not defects) of congenital, developmental, or familial origin, if the evidence as a whole establishes that the familial conditions in question were incurred in or aggravated by service. See VAOPGCPREC 82-90 (July 18, 1990). The Board further notes that even if the condition is considered to be a defect, an opinion should also be provided as to whether it was subject to a superimposed disease or injury during service. Accordingly, the case is REMANDED for the following action: 1. Return the file to the VA examiner who provided the March 2017 eye examination addendum. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner is asked to opine whether the Veteran's congenital posterior staphyloma a "disease process," or is it simply a "defect or abnormality." If a defect, was it subject to a superimposed disease or injury during service? If a congenital disease, did it clearly and unmistakably preexist service and was not aggravated beyond its normal progression during service? 2. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. The appellant 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs