Citation Nr: A21019341 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 190610-22320 DATE: December 6, 2021 ORDER Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for a left hip condition is denied. Entitlement to service connection for a lower back condition is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a penis deformity with loss of erectile power is denied. Entitlement to service connection for left lower extremity neuropathy is denied. Entitlement to service connection for right lower extremity neuropathy is denied. FINDING OF FACT The most probative evidence of record does not show that the Veteran has a bilateral hip condition, lower back condition, bilateral knee disability, bilateral lower extremity neuropathy, or penis deformity with loss of erectile power that is etiologically related to a disease, injury, or event in service, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip condition has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). 2. The criteria for entitlement to service connection for a left hip condition has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). 3. The criteria for entitlement to service connection for a lower back condition has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). 4. The criteria for entitlement to service connection for a left knee condition has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). 5. The criteria for entitlement to service connection for a right knee condition has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). 6. The criteria for entitlement to service connection for penis deformity with loss of erectile power has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). 7. The criteria for entitlement to service connection for left lower extremity neuropathy has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). 8. The criteria for entitlement to service connection for right lower extremity neuropathy has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1968. In August 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act of 2017 (the Appeals Modernization Act or AMA), Pub. Law 115-55, which created a new claims and appeals process for pursuing VA benefits. On February 25, 2019, the Agency of Original Jurisdiction (AOJ) issued a rating decision denying the claims on appeal. On June 26, 2019, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement) appealing the February 25, 2019, denial of these claims. He requested the "Hearing with a Veterans Law Judge" lane, indicating that he wanted a Board hearing and the opportunity to submit additional evidence in support of his appeal that he would provide within 90 days after his hearing. In an August 28, 2019, letter, the Board acknowledged the Veteran's appeal request and informed him that the appeal had been placed on the Hearing docket. Under the AMA, when a claimant seeks appellate review through the Board's Hearing docket, the Board only may consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days after his hearing. 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301. Moreover, the Board is bound by any favorable findings in the rating decision on appeal. 38 C.F.R. § 3.104(c). In December 2020, the Veteran had a hearing before the Board. The Board notes that VA-generated medical records were associated with the claims file within 90 days of the December 2020 hearing. However, as these records were not submitted by the Veteran or his representative, the Board may not consider this evidence. The Veteran may file a Supplemental Claim and submit or identify this evidence. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision. The Board has thoroughly reviewed all evidence in the claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board's reasons for rejecting evidence favorable to the Veteran. The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. Neither the Veteran nor the Veteran's representative has raised any issues not addressed herein, to include regarding the duty to notify or the duty to assist, nor have any other issues been reasonably raised by the record. Additionally, the Veteran has not alleged any deficiency with his December 2020 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § § 3.303. To prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309 (a), the provisions of 38 C.F.R. § 3.303 (b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the issue of arthritis. The Veteran is seeking entitlement to service connection for a bilateral hip condition, lower back condition, bilateral knee disability, bilateral lower extremity neuropathy, and penis deformity with loss of erectile power. At the December 2020 hearing, the Veteran testified that all of these claimed disabilities are related to the in-service removal of a cyst. He asserted that he had lower back pain as a result of this cyst and its removal and that this led to a limp and altered gait, which resulted in the other claimed disabilities. As an initial matter, the Board notes that the AOJ conceded in the February 2019 rating decision that the Veteran had a diagnosis of a bilateral hip disability, a bilateral knee disability, a bilateral lower extremity neuropathy, and a lower back condition. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). No favorable findings were found with regard to his penis deformity with loss of erectile power claim. However, the Board does note that an August 2018 VA treatment record associated with the file at the time of the February 2019 rating decision indicated that the Veteran underwent a right testicular denervation due to right orchalgia. Therefore, the question before the Board is whether any of the Veteran's diagnosed disabilities on appeal are related to his service or to a service-connected disability. A review of his service treatment records reveals no complaints, treatment, or diagnoses related to the claimed disabilities on appeal. Service treatment records reveal that the Veteran underwent surgery for a pilonidal cyst in July 1966. Notably, the Veteran has been granted service connection for residuals of cyst removal, to include tail bone pain, and scar residuals, pilonidal cyst. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In this case, the service treatment records show no indication of any disabilities related to the claims on appeal, and they were not shown by medical evidence until more than 50 years after his service. There is no medical evidence linking the disabilities on appeal to his service, to include his in-service cyst and cyst removal surgery, and he testified no medical professional has told him the claimed conditions are related to service. He was advised at the hearing of the need to submit such evidence to substantiate his claims, but he did not do so. Moreover, the claims file contains no medical evidence linking one of the current disabilities on appeal to his service-connected residuals of cyst removal, to include tail bone pain, or his service-connected scar residuals, pilonidal cyst. The Board has considered the Veteran's contentions that his disabilities on appeal are related to his in-service cyst and removal. However, the Board finds that the Veteran is not competent to make such a connection, as he has no medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between a bilateral hip condition, lower back condition, bilateral knee disability, bilateral lower extremity neuropathy, or penis deformity with loss of erectile power and his service or a service-connected disability exists. The Board notes that there is no competent or credible evidence of record reflecting that the Veteran demonstrated arthritis of the hips, knees, or back to a compensable degree within one year of discharge from active duty. As such, service connection for arthritis cannot be granted on a presumptive basis. With regard to the issue of continuity of symptomatology for his arthritis under 38 C.F.R. § § 3.303 (b), the Veteran specifically denied recurrent back pain, a trick or locked knee, swollen or painful joints, or arthritis on a October 1967 Report of Medical History. There is no other evidence from service or within one year of separation from service documenting arthritis of the knees, hips, or back to a compensable degree. The Veteran testified these conditions developed over time, after service. In summary, as there is no medical evidence of record on the matter linking the Veteran's claimed disabilities on appeal to service or to a service-connected disability, and the Veteran is not competent to provide such links himself, the Board finds that the preponderance of the evidence is against the claims. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.