Citation Nr: 20032844 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 15-14 781A DATE: May 11, 2020 REMANDED Entitlement to service connection for removal of right testicle is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1973 to September 1974. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by the VA Regional Office in Montgomery, Alabama. In a February 2019 decision, the Board denied the Veteran’s claim. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred by not addressing the evidence of record and by applying the wrong standard for rebutting the presumption of soundness. The appeal was then remanded to the Board to address these errors. The Veteran contends that he had a pre-existing right testicle condition that was aggravated by service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b)(1). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The initial determination is whether a right testicle disorder was present prior to service. The Court has indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. Crowe v. Brown, 7 Vet. App. 238 (1994). The Court added that the regulation provides expressly that the term “noted” denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1). In this case, the record evidence shows that the Veteran was not initially noted as having a right testicle condition in his January 1973 entrance examination. Therefore, the presumption of soundness attaches with respect to this portion of the claim and the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disorder was both pre-existing and not aggravated by service. 38 U.S.C. § 1111. The Veteran’s service treatment record show that, following a January 1974 orchiectomy procedure, the Veteran was seen on multiple occasions for complaints of aching pain in the right buttocks and left inguinal region, and pain in the right scrotal or groin region when lifting. These records suggest a possible aggravation. The Board notes that there is a suggestion from the record that the Veteran’s right testicle disorder is congenital in nature. VA law and regulation provides that congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9. Therefore, such disorders require more than an increase in severity during service in order to warrant a grant of service connection. The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability. VAOPGCPREC 82- 90 (July 18, 1990), 55 Fed. Reg. 45711. There is a distinction under the law between a congenital or developmental “disease” and a congenital “defect” for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. Service connection is not available for a congenital or developmental defect in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. Id. Whether a congenital condition is defined as a defect or disease is important as such distinction affects the Veteran’s presumption of soundness on entry to service. The presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303 (c); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. On the other hand, if a veteran suffers from a congenital disease, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. See Quirin, supra. Since the presumption of soundness at entry attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). If VA meets that burden, it must then show by clear and unmistakable evidence that the congenital disease did not increase in severity during service. If VA cannot meet both of these requirements, the condition is evaluated under normal standards for service connection. Regulations pertaining to the rebuttal of the presumption of soundness requires the highly stringent standard of clear and unmistakable evidence that a veteran’s disease or injury existed prior to service, and clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. In light of the foregoing, the Board finds that a medical opinion addressing the evidence of record must be obtained. This matter is REMANDED for the following action: Obtain an opinion to address whether any right testicle disorder is related to service. The Board leaves it to the discretion of the clinician who offers the opinion to determine whether the Veteran needs to be examined. Following review of the complete electronic file, the examiner is asked to address the following. a) Is the Veteran’s right testicle condition considered a congenital defect or a congenital disease? For VA purposes, a defect is a structural or inherent abnormality or condition that is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a disease is capable of improvement or deterioration. b) If the Veteran’s right testicle condition is a congenital defect, is it at least as likely as not (i.e., a 50 percent or greater probability) subject to a superimposed disease or injury during military service that resulted in additional disability apart from the congenital or developmental defect? c) If the Veteran’s right testicle condition is a congenital disease, does the evidence show it was aggravated (worsened) by the Veteran’s military service? If there was worsening, was this due to the natural progress of the disease? d) If the Veteran’s right testicle disorder is not congenital in nature, did it clearly and unmistakably preexist his active duty military service? Consider that no such disorder was noted on the January 1973 Report of Medical Examination. If there is clear and unmistakable evidence that such a disorder preexisted service, please identify the evidence. e) If the answer to question (d) is “yes,” is there also clear and unmistakable evidence that the testicle disorder was NOT permanently aggravated beyond its natural progress during service? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the preexisting condition. Also, in answering this question, please consider that the Veteran underwent orchiectomy during service. (Continued on the next page)   f) If the answer to either question (d) or (e) is “no,” assume as true that the Veteran did not enter service with the disability. With this assumption in mind, is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s right testicle disorder had its onset in service, or is otherwise related to active service? The examiner must provide complete rationale for all conclusions reached. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.