Citation Nr: 21067697 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 14-04 749 DATE: November 5, 2021 ORDER Entitlement to service connection for a right testicle condition is denied. FINDING OF FACT 1. The Veteran's removal of the right testicle is a congenital defect that clearly and unmistakably existed prior to service and was not aggravated in service. 2. There was no injury or disease superimposed on the Veteran's right testicle during his military service. 3. The Veteran's right testicle pain, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. CONCLUSION OF LAW The criteria for service connection for a removal of the right testicle have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011, rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In July 2018, the Board remanded this matter for additional development and consideration. In February 2021, the Board remanded this matter for additional development and consideration. The issue has now been returned to the Board for further appellate consideration. As is further discussed below, the Board finds that there has been substantial compliance with the directives of the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran is seeking service connection for the removal of the right testicle that he contends is due to his military service. Specifically, he contends that the removal of the right testicle is the result of an injury sustained during night training when entering a moving vehicle. See June 2012 Notice of Disagreement (NOD); July 2019 Correspondence from Veteran; April 2018 Board Videoconference; See also July 2012 Buddy Statement. Applicable Laws and Regulations Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The law also provides that a Veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. §§ 1111, 1132. If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d at 1096. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Service connection may be granted for congenital diseases. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009), Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The presumption of soundness applies if a veteran's congenital disease is not noted at entry. See id. When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In this regard, 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, at 390 (holding that the presumption of soundness does not apply to congenital defects); 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"). For purposes of determining whether a disorder is a congenital defect or a familiar disease, VA interprets the term "disease" in 38 U.S.C. §§ 310, 331, and the term "defects" in 38 C.F.R. § 3.303(c), as being mutually exclusive. "Disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90 (citing Dorland's Illustrated Medical Dictionary 385 (26th ed. 1974)). On the other hand, the term "defect," viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature - static. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect," indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). VA must then show by clear and unmistakable evidence for both criteria that the congenital disease (1) preexisted service and (2) was not aggravated thereby in order to rebut the presumption of soundness. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. Factual Background The Veteran's September 1973 induction examination report notes the Veteran had an operation at 17 years and six months from which the Veteran had over strained himself, at service entrance. See September 1973 Service Treatment Records (STR) at 31. In a November 1973 STR, the Veteran reported a painful right testicle injury and painful atrophic right testis is noted. See November 1973 STR. As a result of this the Veteran was found to have an erroneous enlistment, noting the Veteran to be unfit for service due to a congenital defect, diagnosed as "testicular atrophy, right, symptomatic, secondary to orchiopexy age one." The examiner further notes the congenital defect was not aggravated by service. See November 1973 STR, at page 32. Private medical records dated May 1985, reveal that due to complaints of right scrotal pain, a right inguinal orchiectomy was performed, during which his right testicle was removed. See May 1985 Non-Government treatment Records. In an August 2018 Private medical opinion, Dr. Vanderby opined that it is at least as likely as not that the Veteran's "pre-existing condition could have been aggravated due to the injury and is still having pain after having the right testicle removed." See August 2018 Private Medical Opinion. In compliance with the February 2021 Board remand, VA performed a records review conducted by medical specialist Dr. N. R. a Urologist, who opined the Veteran's right testicle condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. See May 2021 VA Medical Opinion. The examiner noted that on the Veteran's entrance examination it was documented that he "had a right orchiopexy via groin (hernia) incision upon enlistment." Id. at 4. The examiner opined that the Veteran's right testicular atrophy is "likely associated with a childhood/congenital history of undescended testicle on the right side." Id. The examiner noted the Veteran reported pain before, during, and after service associated with physical activity. The examiner concluded that as the Veteran's pain clearly pre-existed his entrance into service it is less likely than not related to an inservice injury. Id. Additionally, in the May 2021 VA specialist examination report, the VA specialist opined that the Veteran's right testicle pain, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. See May 2021 VA Medical Opinion at 3. The examiner noted the Veteran also had a "congenital undescended right testicle necessitating right orchiopexy in childhood as evidenced by his enlistment physical." Id. The examiner reviewed the Veteran's claims file and service treatment records and opined "I see no evidence of permanent aggravation elicited from his military exercise for his pre-existing right testicular atrophy (and related pain) induced by surgery for congenital undescended testicle beyond normal progression." Id. Analysis At the outset, the Board acknowledges that the Veteran satisfies the first element of service connection, which is evidence of a current disability. However, based on a review of the claims file as outlined above, the Board finds that the Veteran's removal of the right testicle is a congenital or developmental defect for which service connection is unavailable, and there is no superimposed disease or injury during military service that resulted in increased disability associated with the disability. Specifically, the February 2021 VA specialist examiner reported the Veteran's entrance examination noted that he "had a right orchiopexy via groin (hernia) incision upon enlistment." See May 2021 VA Medical Opinion. The VA expert examiner opined the Veteran's right testicular atrophy is "likely associated with a childhood/congenital history of undescended testicle on the right side." Id. Furthermore, the examiner reviewed the Veteran's claims file and service treatment records and opined, "I see no evidence of permanent aggravation elicited from his military exercise for his pre-existing right testicular atrophy (and related pain) induced by surgery for congenital undescended testicle beyond normal progression." Id at 4. The Board, as it pertains to the second prong of service connection, observes that the Veteran's induction examination does not include a notation of the Veteran's disability at entrance. At first blush, it appears that the induction examination notes the disability, but in actuality it was reported in September 1973 that the Veteran had an operation at 17 years and six months from which the Veteran had over strained himself. See September 1973 Service Treatment Records (STR) at 31. Given this information, the examiner at the time reported that the Veteran was qualified for induction in the US Army. Given such, the Veteran is considered sound. However, the Veteran was subsequently found to have a congenital symptomatic right testicular atrophy secondary to orchiopexy at one years old. See September 1973 Service Treatment Records (STR). This caused the Veteran to be found medically unfit for induction. Id. As the disability is considered a congenital disability, which cannot be service connected and there is no evidence that there was a superimposed disability. Even assuming arguendo, the Veteran's disability was not congenital, the evidence demonstrates that the disability clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated beyond the natural progression of the disease. Specifically, the Veteran's STRs note that the Veteran's congenital defect at service entrance, is diagnosed as testicular atrophy, right, symptomatic, secondary to orchiopexy at age of one. See June 2014 November 1973 STR, at page 32. Here, the examination conducted in service by a physician specifically determined the congenital defect was not aggravated in service. See June 2014 STR, at page 32. The STRs are also silent regarding any treatment for the injury the Veteran claims to have suffered to his testicle during service. Again, as noted above, the VA expert examiner opined "I see no evidence of permanent aggravation elicited from his military exercise for his pre-existing right testicular atrophy (and related pain) induced by surgery for congenital undescended testicle beyond normal progression." See May 2021 VA Medical Opinion at 4. Therefore, there is no in-service indication of aggravation. The Board also notes that the Veteran's subsequent removal of the right testicle occurred well after the Veteran's separation from service, and the evidence fails to establish a link between this occurrence and the Veteran's active service. A review of the Veteran's claims file reveals no complaints of or treatment for symptoms of right testicle disability, until 12 years after separation. See May 1985 Non-Government treatment Records. The Board reviewed the private medical opinions of Dr. S.J.V. dated June 2018 and August 2018 submitted by the Veteran in support of his claim. However, in rendering these etiological opinions, the Dr. S.J.V. determined it was at least as likely as not that the removal of the right testicle and aggravation respectively are due to the Veteran's military service. The Board finds that this is the incorrect legal standard in claims where the disorder may have pre-existed the Veteran's military service and, as such, affords this opinion no probative value. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, Dr. S.J.V. appears to base his opinion on the Veteran's self-reported medical history. Significantly, as the Veteran's induction examination report clearly noted a preexisting disability upon entry into service, a Veteran cannot bring a claim for service connection for that particular disability, but the Veteran may bring a claim for service-connected aggravation of that disability, and Dr. S.J.V. failed to address whether the Veteran's right testicular atrophy was aggravated by his service causing his 1985 surgical removal of the right testicle. The Board recognizes that the Veteran is competent to report pain in his scrotum. The Veteran is not, however, competent to provide a nexus opinion for his current removal of the right testicle as he has not shown to have the medical expertise to offer an opinion on such a complex medical question. The questions presented in this case, i.e., the aggravation of the Veteran's removal of the right testicle are questions as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consideration has been given to the buddy statement provided by Mr. S.J. dated in July 2012 which relates his current right testicle condition to his military service. See July 2012 Buddy Statement. While Mr. S.J. is competent to report that the Veteran experienced an injury in-service, he is not competent to provide a medical opinion as to the etiology of the Veteran's current symptoms relating to a right testicle condition, especially where the record does not reflect that Mr. J.S. has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Determining the cause of a right testicle condition requires medical knowledge and training, that, as a layperson, he has not been shown to possess. The Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a removal of the right testicle. Furthermore, the Board finds no credible evidence which suggests the Veteran's testicular atrophy, right, symptomatic, secondary to orchiopexy age one was aggravated such that he developed a superimposed disease or injury during his active duty service. As a preponderance of the evidence is against the claim for entitlement to service connection for a removal of the right testicle disability. Thus, there is no doubt to be resolved. Service connection for a removal of the right testicle disability is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page) The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. Accordingly, the claim is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, Associate 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.