Citation Nr: 21010964 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 13-31 381 DATE: February 26, 2021 ORDER Entitlement to service connection for hydrocele of scrotum with hard knot is denied. Entitlement to service connection for residuals of a head injury is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for nerve damage in both legs is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for disability of the bilateral feet (hammertoes, hallux valgus, pes planus) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hydrocele of the scrotum with hard knot 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 the Veteran has a current disability of residuals of a head injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hydrocele of scrotum with hard knot have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for residuals of a head injury 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 January 1971 to February 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran previously indicated on his VA Form 9 that he wished to provide testimony at a Board hearing to be held at his local RO. In December 2014, the Veteran returned a response to notice that he had been placed on the list of persons wanting to appear for an in-person hearing before the Board, indicating that he wished to withdraw his request for a Board hearing. The request for a hearing is thus deemed withdrawn. The Board remanded these matters for further development in August 2015, November 2015, and November 2017. In August 2015, the Board directed that the RO should make another request for the Veteran’s 1971 inpatient hospitalization records from the Naval Hospital in Great Lakes, Illinois. Such request was completed, and a January 2016 response from the National Personnel Records Center (NPRC) indicates that the search for records from January 1971 to December 1971 at the Naval Hospital in Great Lakes was negative, as the Veteran’s name was not found in any registry. In the November 2017 Remand, the Board directed that the RO undertake all appropriate development to obtain the 1971 Naval Hospital records until it is determined that further attempts to obtain them would be futile, and to provide the Veteran with adequate notice. A report of general information from January 2018 indicates that the RO telephoned the US Naval Hospital in Great Lakes to request the treatment records, and that they were informed that any treatment records from a period during active duty would be in St. Louis (with the NPRC). It was noted that NPRC had responded that the Veteran’s name was not found in the registry, and that a search in the Joint Legacy Viewer returned no records for the dates in question. The Veteran was sent notice of these attempts and informed that no records were available in a January 2018 letter. The November 2017 Remand also directed that additional efforts be taken to obtain the Veteran’s employment disability/medical records during his employment at the U.S. Postal Service. The Veteran’s official personnel file was provided by the National Records Center Annex in January 2019, and medical records were sent from the US Postal Service Occupational Health Services in June 2019. Additional efforts were made to obtain records from NPRC, the National Archives and Records Administration, and Office of Personnel Management, and negative responses were recorded. The Veteran was sent notice of all such attempts and negative responses in a January 2019 letter. In October 2019, the Board issued a decision, in relevant part denying service connection for disability of the bilateral feet and hydrocele of scrotum with hard knot, and remanding the matters of entitlement to service connection for a back disability, traumatic brain injury/residuals of head injury, and obstructive sleep apnea. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court), and in a July 2020 Order, the Court vacated these two denials and remanded the matters for action consistent with the Parties’ Joint Motion for Partial Remand (JMPR). The JMPR specified that the Board’s prior remands directing that the Veteran be provided with VA examination and medical opinion led the Veteran to believe that the factual question of his having incurred in-service injuries was favorably resolved, and that the Board’s denial on these grounds without giving the Veteran an opportunity to provide evidence and argument in support of his allegations violated VA’s duty to notify and denied the Veteran fair process. See Smith v. Wilkie, 32 Vet. App. 332 (2020). Following the Court’s Order, the Veteran’s representative submitted an Appellant’s Brief reiterating the substance of the JMPR in January 2021. The evidence thus demonstrates that the Veteran has actual notice of the bases of the Board’s credibility analysis pertaining to in-service injuries relating to his claims for service connection for hydrocele of scrotum with hard knot and disability of the bilateral feet, and has had an opportunity to respond with additional evidence and argument. The Board may therefore proceed with adjudication. 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 hydrocele of scrotum with hard knot is denied. After filing his claim for service connection, the Veteran reported to a VA mental healthcare provider in January 2013 that he suffered from hydrocele of the scrotum during service, but that he did not receive treatment for such at that time. Considering the evidence of record, the Board finds that a preponderance of the evidence is against a finding that the Veteran initially manifested hydrocele of the scrotum or sustained a scrotal injury or condition during service to which his current hydrocele could relate. As an initial matter, the service treatment records are absent of any complaint or treatment regarding the scrotum or testes. While a July 1971 STR documents complaint of painful intercourse and irritation that bleeds, the treatment suggested was for circumcision, which would seem to indicate that such complaints pertained to the penis, rather than the scrotum. No genitourinary abnormalities were noted on the January 1972 discharge examination report. Further, the Veteran was provided with private medical examination in March 1976 at which physical examination of the scrotum revealed no evidence of swelling or enlarged testicles, but did reveal a scrotal rash. The Veteran was assessed with acute prostatitis and probable tinea rash in the scrotal area. The first mention of non-dermal scrotal symptoms is recorded in a December 2008 private urology note, which indicated that the Veteran was in a motor vehicle accident one month prior and reported developing some numbness in the penis and scrotum, as well as intermittent swelling in the left scrotum initially that became bilateral. Past medical history listed was absent any ongoing genitourinary disorders. Physical examination of the left scrotum demonstrated a hydrocele and the Veteran was assessed, in relevant part, with bilateral symptomatic hydroceles. When considering the lack of complaints or treatment pertaining to the scrotum in the service treatment records, later physical examination of the scrotum revealing no abnormality other than one affecting the skin, and the fact that the first documented finding of a hydrocele was made more than 35 years after separation from service, the Board finds that a preponderance of the evidence is against a finding that a scrotal hydrocele arose during service, or that the Veteran suffered an event or injury during service relating to the scrotum. The Board acknowledges the Veteran’s later statement that he had a hydrocele during service for which treatment was not provided, but finds the credibility of such statement significantly lessened by the fact that he did not raise such contention until approximately 40 years later, even though he specifically was examined and treated by a private urologist concerning scrotal skin symptoms. One would expect that had the Veteran previously experienced such symptoms, in service or since that time, he would have mentioned such prior medical history to the physician, to aid in his diagnosis and treatment. Therefore, a preponderance of the evidence is found to weigh against the Veteran’s claim, and an award of service connection is not warranted. In so finding, the Board recognizes that VA examination and medical opinion have been provided pursuant to the Board’s August 2015 remand directives and that addendum opinion was requested in the Board’s November 2017 Remand due to perceived inadequacies in the prior opinions provided. Upon further review of the file, however, the Board has determined that the request for such opinion was premature, as an initial finding of fact needed to be made by the decider of fact (in this case, the Board) prior to the need for an opinion to be triggered. Inasmuch as there is no evidence in the STRs of any complaints or treatment relating to the scrotum and the Board has found the Veteran’s report of having an untreated hydrocele in service to lack credibility, the need for a medical opinion is not triggered. While the Board could again remand the matter to obtain exact compliance with the Board’s prior remand directives, any such opinion would lack probative value, as it would by necessity require acceptance of a factual basis which the Board has found to be unsupported by the evidence of record (i.e. a preponderance of the evidence is against finding an in-service event, injury, or disease potentially related to the scrotum). See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician’s opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Further remand for another addendum opinion pertaining to this claim would therefore not benefit the Veteran and is not found warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). 2. Entitlement to service connection for residuals of a head injury is denied. The Veteran asserts entitlement to service connection for in-service head injuries. While the Veteran’s service treatment records document two incidents involving the Veteran’s head, the Veteran has not described any particular symptoms which he attributes to these incidents. Pursuant to the Board’s October 2019 remand directives, the Veteran was provided with a VA examination pertaining to his claimed head injury/traumatic brain injury in January 2020. Examination was found warranted because the Veteran had described concentration and certain other psychiatric symptoms that could potentially be related to his documented in-service incidents described below. The examiner was asked to provide an opinion as to whether during the relevant appeal period, the Veteran had any residuals of a head injury or trauma and if so, whether it was related to an in-service injury. The examining psychiatrist noted the documented in-service incidents when the Veteran injured his head in July 1971 and when he had a rack fall on his nose, with subsequent dizziness in January 1972, but further noted that the service treatment records do not indicate that he lost consciousness or had a prolonged period of alteration of consciousness or amnesia for the event, and that the Veteran did not give a clear history suggesting this. He concluded that even if it were the case that the Veteran had suffered a mild traumatic brain injury at these times, the Veteran specifically denies any new symptoms which occurred as a result of the alleged head injury which are persisting to the present time. The examiner’s opinion was that there are no current residuals pertaining to the Veteran’s in-service head injuries. The Veteran has additionally described an incident pertaining to a series of events that the Veteran contends occurred during basic training. Specifically, the Veteran asserts that in February or March 1971, he experienced back pain and muscle spasms and was given a medication, Parafon Forte, to which he had an adverse reaction. He describes experiencing “full body swell” and falling down a concrete stairway, after which he was hospitalized, during which he contends he was put in a straitjacket and given multiple injections. The Veteran asserts that he sustained multiple injuries due to falling down the concrete stairway and has suffered continuing physical effects following this event and his severe reaction to Parafon Forte, which have continued to the present. He has variously described losing consciousness following his fall (see September 2016 VA psychiatric examination, stating he woke up in the hospital) and remaining conscious and asking a nearby officer for help immediately following his fall (see September 2012 VA social work note). As an initial matter, the Board recognizes that hospital records from the Veteran’s reported treatment at the Naval Hospital in Great Lakes, Illinois in 1971 have not been located. The Veteran’s service treatment records (STRs) do not include documentation of any illnesses or injuries during basic training, but include an April 29, 1971 notation that the Veteran was examined this date and found physically qualified for transfer. The absence of these records is not considered by the Board to constitute negative evidence against the Veteran’s claim. While the Veteran is competent to describe events he experienced during service, other evidence of record raises questions as to the credibility of his report of falling down concrete stairs resulting in significant injury. As an initial matter, although the file contains extensive private treatment records for the Veteran dating back to 1973, none of the records before he filed his claim for service connection benefits in 2010 indicate that the Veteran told any of his care providers about injuries sustained from falling down stairs in service or complaints dating back to his time in the Navy. Considering the Veteran’s report at the September 2016 VA psychiatric examination that the incident “messed up [his] body… head, and [] extremities,” such that he “couldn’t do anything anymore after that,” one would expect to see some mention of ongoing problems in the subsequent service treatment records. While the record contains service treatment records from the Veteran’s time aboard the USS Little Rock immediately after basic training documenting complaints and treatment for instances of painful intercourse, difficulty sleeping, sensation of pain and pulling in thigh, pharyngitis, and an incident where a rack fell on his nose, there is no mention of any significant injury or residuals from the Veteran’s time during basic training, or mention of any ongoing physical maladies. The Board further notes that while the Veteran filed a claim for benefits in May 1976 indicating that he experienced pain in his left side and was hospitalized due to reaction to medicine, there is no mention of a stairwell fall incident or injury therefrom. When considering the totality of the evidence, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran fell down one or two flights of concrete stairs during basic training and subsequently lost consciousness. The Board finds it persuasive that STRs following the alleged event make no reference to it, despite the Veteran’s contentions that he sustained injuries from this fall and experienced ongoing symptoms to multiple areas since basic training, and that the first mention of such incident came nearly 40 years after it allegedly occurred, despite the Veteran seeing multiple private healthcare providers concerning conditions he now asserts are related to his naval service. The Board finds his reports to his treatment providers, and the absence of any mention of relevant in-service event/injury to be more persuasive than his assertions made in furtherance of his claim for VA service connection benefits, in that it would be expected that the Veteran would be particularly inclined toward truthfulness and forthcomingness in his statements to treatment providers, in order to facilitate productive treatment. See Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy, and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)). The Board therefore finds that a preponderance of the evidence demonstrates the Veteran has not suffered from residuals of a traumatic brain/head injury at any time during the relevant appeal period. The weight of the evidence being against the Veteran’s claim, there is no reasonable doubt to resolve in his favor; and the appeal must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. In the October 2019 remand, the Board directed that the Veteran be provided with examination and medical opinion concerning the nature and etiology of any current back/lumbar disability. The examiner was directed to take the Veteran’s contentions of experiencing back spasms and being prescribed a muscle relaxant during basic training as fact. A VA back examination was conducted in December 2019, at which it was found that the Veteran had degenerative disc disease and degenerative joint disease L4-S1 status post discectomy/fusion L4-5. The examiner noted that the Veteran stated that his back issues started in boot camp where he was seen for back spasms, but the examiner made particular note that he could find no mention in the STRs or reference in the Veteran’s discharge examination report of low back pain. The Veteran additionally reported being caught in a severe storm while in the USS Little Rock during service and being thrown around in the ship, again hurting his back. The examiner again noted that there was no entry in the STRs or supporting lay statements indicating that the Veteran sustained the injury in service. The examiner concluded that it was less likely than not that a current back disability was incurred in or caused by an in-service injury, reasoning that the Veteran is a poor historian, he was unable to find any medical or administrative records referencing the back injury, and that his opinion stands “unless [the Veteran] can produce such documentation.” Despite the Board’s direction that, in rendering the opinion, the examiner was to take the Veteran’s statements concerning experiencing back spasms and being prescribed a muscle relaxant during basic training as fact, the examiner’s stated rationale clearly indicates that he did not. The examination and medical opinion report is therefore found to be inadequate for adjudicatory purposes, and also to not substantially comply with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Remand is therefore needed for an addendum opinion. The Board notes that directions made to the examiner in reference to particular evidence should not be construed as a determination of its credibility. See Smith v. Wilkie, 32 Vet. App. 332 (2020). The Board further notes that in a post-remand brief submitted in February 2021, the Veteran’s representative presented argument that the Veteran’s service-connected mental health condition/chronic sleep impairment resulted in obesity which in turn caused or aggravated his back disability. While obesity itself cannot be service-connected on a direct basis, it may potentially serve as an intermediate step between a service-connected disability and a claimed secondary disability. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). On remand, a supplemental medical opinion should be provided addressing whether the Veteran’s back disability is secondary to his service-connected bipolar disorder. 2. Entitlement to service connection for nerve damage in both legs is remanded. Because a decision on the remanded issue entitlement to service connection for a back disability could significantly impact a decision on the issue of entitlement to service connection for nerve damage in both legs, the issues are inextricably intertwined. A remand of the latter issue is therefore also needed. 3. Entitlement to service connection for obstructive sleep apnea is remanded. In the post-remand brief submitted in February 2021, the Veteran’s representative presented argument that the Veteran’s service-connected mental health condition/chronic sleep impairment resulted in obesity which caused or aggravated his obstructive sleep apnea (OSA), noting that obesity is a common factor in the development and severity of OSA. On remand, a supplemental medical opinion should be provided on the question of secondary service-connection. 4. Entitlement to service connection for disability of the bilateral feet (hammertoes, hallux valgus, pes planus) is remanded. While the Veteran’s representative did not specifically assert that the Veteran’s bilateral foot disability is secondary to obesity resulting from his service-connected bipolar disorder and chronic sleep impairment, the Board finds that supplemental medical opinion should be provided on this theory of entitlement. On remand, a supplemental medical opinion should be provided on the question of secondary service connection. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the physician who conducted the December 2019 back examination or if unavailable, from another suitable medical professional, concerning the nature and etiology of the Veteran’s low back disability. The physician must provide an opinion as to whether it is at least as likely as not that any back/lumbar disability present at any time during the relevant appeal period is related to an in-service injury, event or disease. *For purposes of providing this opinion only, the examiner/medical professional is directed to take the Veteran’s description of experiencing back spasms during basic training for which he was prescribed a muscle relaxant as established fact. The examiner’s attention is additionally directed to private treatment records from March 1976 documenting the Veteran’s complaints regarding pain in the left flank and lower back. A rationale must be provided for any opinion expressed/conclusion reached. If the medical professional finds that they cannot offer an opinion without resorting to mere speculation, they must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the medical professional (does not have the knowledge or training). 2. Obtain a supplemental medical opinion from one or more appropriate clinicians concerning whether the Veteran’s claimed back disability, obstructive sleep apnea, and/or bilateral foot disability is secondary to obesity caused or aggravated by his service-connected disabilities. Any clinician consulted is asked to address the following: a. Is it at least as likely as not that the Veteran’s obesity was (i) caused or (ii) aggravated by his service-connected disabilities, to include bipolar disorder and chronic prostatitis with urethral bleeding and erectile dysfunction? If the clinician finds that obesity was caused by one or more of the Veteran’s service-connected disabilities, an opinion should be offered for each of the following: [The word “current” in the following questions should be understood to mean existing at any time during the relevant appeal period, August 2010 to present.] i. is it at least as likely as not that obesity was a substantial factor in causing or aggravating the Veteran’s current back disability; and ii. is it at least as likely as not that the Veteran’s current back disability would not have occurred/ been aggravated but for the Veteran’s obesity; iii. is it at least as likely as not that obesity was a substantial factor in causing or aggravating the Veteran’s current obstructive sleep apnea; and iv. is it at least as likely as not that the Veteran’s current OSA would not have occurred/ been aggravated but for the Veteran’s obesity; v. is it at least as likely as not that obesity was a substantial factor in causing or aggravating the Veteran’s current bilateral foot disability; and vi. is it at least as likely as not that the Veteran’s current bilateral foot disability would not have occurred/ been aggravated but for the Veteran’s obesity; b. If the clinician finds that obesity was aggravated by one of more of the Veteran’s service-connected disabilities: i. is it at least as likely as not that the aggravation of obesity as a result of service-connected disability was a substantial factor in causing or aggravating the current back disability; and ii. is it at least as likely as not that the current back disability would have occurred/ been aggravated but for obesity aggravated by the service-connected disability or disabilities? iii. is it at least as likely as not that the aggravation of obesity as a result of service-connected disability was a substantial factor in causing or aggravating the current OSA; and iv. is it at least as likely as not that the current OSA would have occurred/ been aggravated but for obesity aggravated by the service-connected disability or disabilities? v. is it at least as likely as not that the aggravation of obesity as a result of service-connected disability was a substantial factor in causing or aggravating the current bilateral foot disability; and vi. is it at least as likely as not that the current bilateral food disability would have occurred/ been aggravated but for obesity aggravated by the service-connected disability or disabilities? (Continued on the next page)   The clinician must provide a rationale for any opinion expressed/conclusion reached. If the clinician finds that they cannot offer an opinion without resorting to mere speculation, they must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.