Citation Nr: 20032167 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 06-24 226 DATE: May 7, 2020 ORDER Entitlement to service connection for a right testicle disorder is denied. Entitlement to service connection for a right elbow disability is denied. REMANDED Entitlement to service connection for lung disability, including chronic obstructive pulmonary disease (COPD) and chronic bronchitis, to include as a result of exposure to asbestos, is remanded. Entitlement to service connection for a headache disability, to include as a result of asbestos exposure and/or as secondary to lung disability, is remanded. Entitlement to service connection for dermatological disorder involving the feet (including nails) and groin is remanded. Entitlement to service connection for bilateral foot disability of the bones, to include pes planus, is remanded. Entitlement to service connection for a sleep disorder, including sleep apnea, to include as a result of asbestos exposure and/or as secondary to lung disability, is remanded. Entitlement to service connection for chronic strain of the bilateral hips, to include as secondary to bilateral foot disability, is remanded. Entitlement to service connection for a bilateral ankle disability, to include as secondary to bilateral foot disability, is remanded. Entitlement to service connection for bilateral knee disability, to include as secondary to bilateral foot disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right testicle disorder began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a right elbow disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right testicle disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right elbow disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1971 to March 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in February 2008, April 2010, September 2011, February 2013, and September 2015. The Veteran testified before the Board at a January 2008 videoconference hearing; a transcript of the hearing is associated with the claims file. The Board has reclassified the prior claim for entitlement to service connection for a bilateral foot disorder, to include nails, skin and bone. The nails and skin portion has been added to the claim for entitlement to a dermatological disorder involving the feet and groin. The bone portion remains a separate issue: entitlement to service connection for bilateral foot disability of the bones, to include pes planus. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a right testicle disorder The Veteran contends that service connection is warranted for a testicle disorder because he was diagnosed with right testalgia in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of intermittent right testalgia, and evidence shows that he had sudden onset right testicular pain in December 1972 that was diagnosed as “right testalgia, etiology unknown,” the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of intermittent right testalgia began during service or is otherwise related to an in-service injury, event, or disease. A December 1972 hospital treatment record diagnosed “right testalgia, etiology unknown”; the record also indicated It is doubtful that this has been due to torsion, though it could have been due to a temporary torsion of a testicular appendage. However, there was no physical evidence of this. The patient is being discharged to duty and to return to the Urology Clinic in one month for follow-up or sooner if the symptoms return. The Veteran’s service treatment records are negative for any additional right testicle pain. The March 1975 separation examination did not indicate any issues with the Veteran’s testes. An August 1993 VA examination diagnosed multiple conditions but did not reference any disability of the testes. Instead, the August 1993 VA examination noted “Testes are normal.” Although the Veteran has treatment records dating back to at least 1992, the first reference to a possible testicular disability is the Veteran’s May 2005 claim. Moreover, he did not seek treatment for this condition until June 2009, when the Veteran reported pain in the right testicle in a VA medical center (VAMC) treatment record. Furthermore, an April 2013 VA examination opined that there is no evidence the Veteran’s testalgia is related to service because “the Veteran was seen for acute testalgia on active duty. The service records indicate that it was doubtful that the pain was due to torsion but possible to temporary torsion that resolved.” Additionally, the VA examination noted that “There are no other complaints for the remaining 3 years of testalgia while on active duty.” The VA examination further noted, regarding the Veteran’s reports of intermittent testalgia since service, that The condition documented on active duty is noted to be an acute condition that would not result in a chronic testicular condition. If the testalgia noted on active duty became a chronic condition once would have expected to have seen objective evidence during the remaining years of active duty or within the first few years following active duty. However, there is no documentation for 26 years following active military duty. Finally, to the extent the Veteran has claimed his testicle disability is related to his minimal asbestos exposure in service, the April 2013 VA examination noted “In review of peer reviewed medical literature there is not a link . . . between asbestos exposure and testalgia.” These VA examination opinions are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted by the April 2013 VA examination, the Veteran has claimed that he had intermittent testalgia since service. In a May 2005 statement associated with his claim, the Veteran reported that he had “a major problem with a twisted testicle” and was sent back “to light duty . . . . [He] had a few problems with pain but not much, it was there nevertheless.” At a July 2010 VA examination the Veteran stated that “he continues to have intermittent pain in his right testicle that happened at least 1-3 times a year . . . . The Veteran reports it could last for a few hours to 3 days.” After considering the evidence, the Board has determined that the Veteran’s claim of intermittent pain since service is not credible. First, the Board noted that the contemporary service treatment records do not document any additional testicular pain after December 1972, despite treatment for many other issues in that period, including left leg contusion, right knee puncture wound, right hand pain, yucca plant stuck on left hand, and multiple viral syndromes. The March 1975 separation examination did not reference any issues with the Veteran’s testes. Next, the Veteran was examined in August 1993 and his testes were “normal.” Finally, the Veteran did not seek treatment for his testicular pain until June 2009, decades after service. For these reasons, the Veteran’s reports of intermittent pain since service are deemed not credible and are given no weight in the Board’s analysis. Finally, the Veteran believes his right testalgia is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2013 VA examination, and finds that service connection is not warranted for a right testicle disorder. 2. Entitlement to service connection for a right elbow disability The Veteran contends that he has a right elbow injury. Alternatively, he appears to argue that his right elbow condition is due to asbestos exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of degenerative joint disease of the right elbow, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are negative for any elbow injuries, although he did seek treatment for many other conditions such as testicular pain, right knee puncture wound, right hand pain, yucca plant stuck on left hand, and multiple viral syndromes. The Veteran testified at the January 2008 hearing that “the right elbow, they [sic] bilateral hip, knee, bilateral foot bone abnormalities and the bilateral ankle conditions . . . are the result of a motorcycle accident that happened . . . on or about October of 1972”; the Veteran further testified that in the motorcycle accident “whenever I went down, I went down hard and I had scrape marks on my buttocks from it.” The Veteran likewise stated at a July 2010 VA examination that “he had a motor vehicle accident and injured his right elbow, right hip, right knee, and right foot in 1972.” The Veteran’s 1972 service treatment records do not reference any motor vehicle accident. An October 1972 service treatment record noted that a “Motorcycle fell on leg L Area of contusion, swelling, tenderness, superior to L medial malleolus.” There are no additional references to any injury of the right elbow, hips, knees, feet, or ankles. Although the Veteran is competent to report occurrences during his service, the Board finds that his statements are not credible because they are not supported by the contemporary records, i.e. the service treatment records. The only reference to an accident is the motorcycle falling on the Veteran, and this was limited to injuries of the left leg. As noted above, the Veteran sought treatment for many conditions while in service. Accordingly, the Board finds that the Veteran would have sought treatment for an injury substantial enough to affect his elbow, hips, knees, feet, and ankles. The Veteran’s statements are therefore found not credible in light of the contemporary records (and lack thereof) and the Board gives no weight to the Veteran’s statements of in-service injury to his right elbow. While the Veteran believes his right elbow disability is related to service, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service injury occurred. This does not end the Board’s analysis, however. VA has acknowledged that the Veteran was minimally exposed to asbestos in service. The Veteran has argued that multiple disabilities are related to this exposure, potentially including the right elbow condition as one such disability. Although the Veteran has a current disability (degenerative joint disease of the right elbow) and an in-service injury (minimal exposure to asbestos), the Board finds that there is not a nexus between these the right elbow degenerative joint disease and asbestos. The Board notes that the Veteran has not provided any information regarding how asbestos exposure, which affects the lungs, relates to a joint disability of the elbow. Additionally, an April 2013 VA examination found that this condition was less likely than not related to asbestos exposure because “Review of peer reviewed medical journals is negative for an etiological link between orthopaedic conditions and prior asbestos exposure.” Thus, to the extent that the Veteran argued that his right elbow disability was related to in-service asbestos exposure, the Board finds that there is no nexus between the two. Service connection is accordingly denied. REASONS FOR REMAND 1. Entitlement to service connection for lung disability, including COPD and chronic bronchitis, to include as a result of exposure to asbestos, is remanded. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a lung disability because no VA examiner has opined whether the Veteran’s restrictive lung disease is related to service, to include as a result of the Veteran’s minimal exposure to asbestos. 2. Entitlement to service connection for a headache disability, to include as a result of asbestos exposure and/or as secondary to lung disability, is remanded. The Board cannot make a fully informed decision on the issue of entitlement to service connection for headache disability because no VA examiner has opined whether the disability is secondary to his service-connected tinnitus. In an August 2013 VA examination the Veteran reported his tinnitus was an “annoyance” to him and caused him to have headaches. An opinion is necessary to determine whether his reported headaches are due to or aggravated by his tinnitus. 3. Entitlement to service connection for dermatological disorder involving the feet (including nails) and groin is remanded. The Board cannot make a fully informed decision on the issue of entitlement to service connection for dermatological disorder because no VA examiner has opined whether the Veteran’s current dermatological disability is related to his in-service treatment for “ringworm(?) both feet and legs” in May 1972. 4. Entitlement to service connection for bilateral foot disability of the bones, to include pes planus, is remanded. The Board cannot make a fully informed decision on the issue of entitlement to service connection for bilateral foot disability of the bones, to include pes planus, because no VA examiner has opined whether the Veteran’s current pes planus is related to pes planus diagnosed in service on March 16, 1971, six days after the Veteran’s entry into service. 5. Entitlement to service connection for a sleep disorder, including sleep apnea, to include as a result of asbestos exposure and/or as secondary to lung disability, is remanded. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a sleep disorder because no VA examiner has opined whether sleep apnea is secondary to lung disability. 6. Entitlement to service connection for chronic strain of the bilateral hips, to include as secondary to bilateral foot disability, is remanded. The Veteran argues that chronic strain of the bilateral hips is due to his bilateral foot disability. If a VA examination determines that the Veteran’s pes planus is related to service, an opinion addressing causation of the bilateral hip disability must be obtained. 7. Entitlement to service connection for a bilateral ankle disability, to include as secondary to bilateral foot disability, is remanded. The Veteran argues that bilateral ankle disability is due to his bilateral foot disability. If a VA examination determines that the Veteran’s pes planus is related to service, an opinion addressing causation of the bilateral ankle disability must be obtained. 8. Entitlement to service connection for bilateral knee disability, to include as secondary to bilateral foot disability, is remanded. The Veteran argues that the bilateral knee disability is due to his bilateral foot disability. If a VA examination determines that the Veteran’s pes planus is related to service, an opinion addressing causation of the bilateral knee disability must be obtained. 9. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the issues being remanded. In addition, the Veteran has not completed a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). The record indicates that the Veteran has worked since filing his May 2005 claim for a TDIU, including training and work in 2014. The Veteran should be given an opportunity to fill out a VA Form 21-8940. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 and request that he fill it out, to include any training and work in 2014. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lung disability from May 2005 to present, to include COPD, chronic bronchitis, and/or restrictive lung disease. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including conceded minimal exposure to asbestos. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache disability. The examiner must opine whether it is at least as likely as not (a.) Proximately due to service-connected tinnitus. (b.) Aggravated beyond its natural progression by service-connected tinnitus. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin disorder from May 2005 to present, to include intertrigo, nail disorders, and cysts in groin. The RO should attempt to schedule the VA examination when the Veteran’s skin condition is active. The VA examiner should address the Veteran’s statements regarding the symptoms of his skin condition when active. The examiner must opine whether any skin disorder is at least as likely as not related to an in-service injury, event, or disease, including in-service treatment for “ringworm(?) both feet and legs” in May 1972. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current bilateral pes planus is at least as likely as not the same chronic disease (defined in 38 C.F.R. § 3.303(b)) as “pes planus” diagnosed in a March 16, 1971 service treatment record. If the clinician finds that the Veteran’s bilateral pes planus is a chronic disability shown in service, the clinician must address whether it is at least as likely as not that (a.) The bilateral hip disability is proximately due to pes planus. (b.) The bilateral hip disability is aggravated beyond its natural progression by pes planus. (c.) The bilateral ankle disability is proximately due to pes planus. (d.) The bilateral ankle disability is aggravated beyond its natural progression by pes planus. (e.) The bilateral knee disability is proximately due to pes planus. (f.) The bilateral knee disability is aggravated beyond its natural progression by pes planus. 6. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not (a.) Proximately due to any diagnosed lung disability.   (b.) Aggravated beyond its natural progression by any diagnosed lung disability. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Ripplinger, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.