Citation Nr: 21074949 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-38 393 DATE: December 16, 2021 ORDER Service connection for a lower back disorder, to include as secondary to service-connected epididymitis, is denied. Service connection for a right lateral leg disorder, to include as secondary to service-connected epididymitis, is denied. Service connection for a right knee disorder, to include as secondary to service-connected epididymitis, is denied. FINDING OF FACT The Veteran's disorders of the lower back, right lateral leg, and right knee were not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disabilities are not otherwise etiologically related to an in service injury or disease or to his service-connected epididymitis. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back disorder, to include as secondary to the service-connected epididymitis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a right lateral leg disorder, to include as secondary to the service-connected epididymitis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a right knee disorder, to include as secondary to service-connected epididymitis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from October 1973 to October 1976, including service in the Republic of Vietnam. In August 2019, the Board remanded the matters for further development. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). While the Veteran's right leg disorder, other than the knee, has been characterized as a right side leg disorder, the record indicates that he is referring to symptoms on the lateral, or outside or away, side of the leg. Thus, the Board has recharacterized the disorder as noted above. 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; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease does not need to be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disease or injury, will be service connected. 38 C.F.R. § 3.310(b). Thus, service connection is permitted not only for disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. Lower back disorder Right lateral leg disorder Right knee disorder The Veteran asserts that his lower back, right lateral leg, and right knee disorders were caused or aggravated by his service-connected epididymitis or were complications of his in-service vasectomy, which led to the epididymitis. The Board observes that some of the Veteran's service treatment records are unavailable. Where a veteran's service treatment records have been destroyed or lost, there is a duty to advise him to obtain other forms of evidence. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Here, in March 2013 correspondence, after requests to both the National Personnel Records Center and Records Management Center, the agency of original jurisdiction (AOJ) advised the Veteran that some of his service treatment records could not be located and asked him to submit any in his possession. The Veteran has not submitted any additional service treatment records. Thus, the Board concludes that VA's heightened duty to assist has been satisfied. The Board also has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Pruitt v. Derwinski, 2 Vet. App. 83 (1992). The analysis herein has been undertaken with this heightened duty in mind. As will be seen below, while the actual surgery report or follow-up treatment records are not of record, the available service treatment records indicate that the Veteran underwent a vasectomy during service in 1976. Indeed, the AOJ has acknowledged the in-service vasectomy and granted service connection for the subsequent epididymitis. Also, as the Veteran does not assert that his lower back or right lateral leg and right knee problems began during service, the missing service treatment records would not have even shown any treatment for those disorders. Thus, while unfortunate, the lack of the Veteran's service treatment records does not appear to be prejudicial in this case. The Board also notes that the Veteran's VA treatment records from 1979 to 1981 are unavailable. However, in a July 2012 statement, the Veteran indicated that he had been told that they were destroyed. The AOJ was also unable to locate those records and advised the Veteran of that fact in June 2013. Moreover, as the Veteran indicated on his claim that his lower back and right leg and knee problems began in October 2011 (and the available VA treatment records support that time of onset), the missing VA treatment records would not have even shown any treatment for those disorders. Thus, again while unfortunate, the lack of those VA treatment records also does not appear to be prejudicial in this case. The Board also observes that the record does not show, and the Veteran does not assert, that his lower back, right lateral leg or right knee disorder began during active service. On his December 2011 claim, he noted that his lower back and right lateral leg disorders began in October 2011. Thus, the Board will turn to the Veteran's main assertion that his disorders were complications of the in-service vasectomy or secondary to his service-connected epididymitis. Service treatment records show that the Veteran underwent a vasectomy in 1976. However, records of the surgery or follow-up care are not available. In May 1979, he complained of pain in the groin, specifically the scrotum, for the past three weeks. The clinician noted a history of vasectomy two years ago and examination findings of a tender epididymis bilaterally and diagnosed the Veteran with low grade epididymitis. There are no complaints, findings, or diagnoses of lower back or right leg or knee pain. VA treatment records show that in July 2011 the Veteran complained of numbness in his right leg. X-rays revealed a normal right knee. In August 2011, he reported a history of chronic lower back pain that began two years earlier, initially occurring very infrequently but since then occurring more frequently. He noted that the pain radiates down the lateral aspect of the right leg and stops at the knee. The clinician stated that the Veteran's lower back pain with radiation to the right lateral thigh was most likely secondary to quadratus lumborum syndrome given the unremarkable lumbar X-rays and right thigh pain which is inconsistent with a dermatomal distribution. July 2011 X-rays of the Veteran's lumbar spine were noted as unremarkable except for evidence of mild bilateral hip degenerative changes. A January 2013 record reflects a history of chronic lower back pain for the past 4 to 5 years along with a tingling sensation and numbness in the right lateral leg as well as the leg just giving out. A March 2016 MRI revealed central to left paracentral focal disc protrusion at T12-L1 with mild impingement, L2-3 right paracentral disc extrusion with impingement of the right L3 nerve root, mild disc bulge at L2-3 with mild central canal narrowing, and bilateral facet joint osteoarthritis at L4-5. More recent records dated in March 2020 and July 2021 indicate bilateral lower leg pain due to spinal stenosis. In a December 2017 disability benefits questionnaire, a private physician noted the Veteran's remote history of vasectomy and indicated that he has been having bouts of epididymitis symptoms since 2011 that result in chronic episodic pelvic and right lower extremity pain and numbness. The physician noted that it is possible that the Veteran has right lower extremity neuropathy. At a January 2020 VA spine examination, the Veteran reported that he began having right-sided lower back pain in 1989. After examination, which revealed normal findings, the examiner indicated that the Veteran did not have a current lower back disorder. [While examination that day may not have yielded any abnormal findings, including loss of range of motion, as the record clearly shows that the Veteran has been diagnosed with a lower back disorder, the findings of this examination are not probative as to current disability.] In a January 2020 medical opinion, a VA examiner stated that a vasectomy is a severing of the vas deferens in the scrotum which requires only a small incision and does not result in lower back, knee or leg pain or conditions. The examiner noted that due to anatomical and physiological relationships the only complications from such surgery would involve the scrotum or pelvis. The examiner concluded that the Veteran's lower back, right lateral leg and right knee disorders are not due to his vasectomy in service. The examiner further noted that epididymitis involves inflammation or infection of the epididymis, a structure in the scrotum behind the testicle, and the condition can result in scrotal or pelvic pain but due to anatomical and physiological considerations does not involve the back, knee or leg. The examiner concluded that the Veteran's lower back, right lateral leg and right knee disorders are not due to his epididymitis in service. The Veteran has been afforded numerous VA examinations to evaluate his service-connected epididymitis, but none has ever noted any associated problems with his lower back or right leg or knee. Initially, the record is unclear as to whether the Veteran has a right knee disability separate and distinct from the right lateral leg disorder, which the record indicates is right lower extremity neuropathy associated with the lower back disorder. July 2011 X-rays of the right knee were negative, and there is no diagnosis of a right knee disorder in the VA or private treatment records. Rather, a September 2012 VA treatment record indicates that the knee disorder is part of the right lower extremity neuropathy, as reflected by the Veteran's report that his back pain is running up and down his leg again and his knee went out on him again. However, to the extent that he does, the Board will continue with the analysis of whether a right knee disorder is related to service or service-connected epididymitis. Given the above, while the Veteran underwent a vasectomy in service and later suffered a bout of epididymitis in service, there is no evidence that either the vasectomy or epididymitis resulted in a chronic disorder of the lower back, right lateral leg, or right knee. There is no indication of any of these disorders in the service treatment records. While the separation examination report notes the vasectomy, there is no mention of any complications and there is no notation of any separate disorder of the lower back or right leg or knee. There is also no evidence of lower back or right leg/knee problems within one year of separation from active service. The first post-service evidence of any of these problems is in July 2011, when the Veteran complained of numbness in his right leg (when a knee disorder was suspected as X-rays of that joint were ordered) and in August 2011 when he reported a history of chronic lower back pain. Those records date the onset of the disorders to over 34 years after discharge from service. While the Veteran reported in August 2011 that he has had lower back problems for two years, that still dates the lower back symptoms to over 32 years after discharge. Further, while he reported at the January 2020 VA examination that his lower back pain began in 1989, which is a different history that previously provided, even that still dates the onset of his disorder to over 12 years after discharge. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Accordingly, the Board finds that the Veteran's disorders of the lower back, right lateral leg and right knee were not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period. Moreover, a VA examiner has opined that the Veteran's disorders of his lower back, right lateral leg and right knee were not due to the in-service vasectomy and were not caused or aggravated by his service-connected epididymitis. While the examiner limited the opinion as to whether the disorders are related to the epididymitis to only the in-service bout of epididymitis, given the rationale outlining the procedure and the anatomical and physiological relationships, the Board observes that the opinion would equally apply to all subsequent bouts of epididymitis. As such, the Board finds that the examiner's opinion is still of great probative value as to whether the Veteran's disorders were caused or aggravated by the vasectomy or his service-connected epididymitis. Hayes v. Brown, 9 Vet. App. 67 (1996). That is the only competent and probative medical opinion of record and is, unfortunately, against the claim. Accordingly, the Board finds that the Veteran's disorders of his lower back, right lateral leg and right knee are not secondary to service-connected epididymitis and are not otherwise etiologically related to an in service injury or disease. In a December 2017 disability benefits questionnaire, a private physician noted that the Veteran's chronic epididymitis results in episodic pelvic and right lower extremity pain and numbness. However, the physician also noted that it is possible that the Veteran has right lower extremity neuropathy. Medical evidence of record does indeed show that the Veteran has right lower extremity neuropathy associated with a lower back disorder. As such, the private physician's suspicion that the Veteran's right lower extremity symptoms were due to a lower back disorder was correct. Therefore, the earlier statement that the Veteran's right lower extremity pain and numbness were due to epididymitis is negated. Id. Here, the Board reiterates that none of the VA examinations of the Veteran's epididymitis revealed any associated symptoms in his lower back or right leg or knee. A lay person is competent to give evidence about observable symptoms such as pain and numbness. Layno v. Brown, 6 Vet. App. 465 (1994). Also, a lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of symptoms to over 30 years after separation from active service, and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disorders, and available medical evidence shows that his disorders are not related to active service or the service-connected epididymitis. Lastly, as the Veteran served in the Republic of Vietnam during the Vietnam Era, he is presumed to have been exposed to an herbicide agent (like the dioxin in Agent Orange). 38 U.S.C. § 1116(f). In that regard, while early-onset peripheral neuropathy is a disease associated with exposure to herbicide agents, it must have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to the herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). Here, to the extent that the Veteran may have had early-onset peripheral neuropathy affecting his right lower extremity, with no objective evidence of any right lower extremity symptoms within a year of his discharge from service, service connection for any such early-onset peripheral neuropathy is not warranted on a presumptive basis. Accordingly, the Board concludes that service connection for a lower back disorder, right lateral leg disorder, and right knee disorder is not warranted. As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.