Citation Nr: 21021646 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-02 321 DATE: April 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for residuals from a hernia surgery pursuant to 38 U.S.C. § 1151 due to a procedure at a VA hospital is denied. FINDINGS OF FACT 1. The preponderance of the evidence is in favor of the finding that Veteran’s acquired psychiatric disorder began during active service, or are otherwise related to an in service injury, event, or disease 2. The preponderance of the evidence fails to show the Veteran’s right testicular surgery was due to his hernia surgery. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.159 (2020). 2. The Veteran’s residuals from his hernia surgery, right testicular issues did not meet the criteria of a qualifying additional disability under the provisions of 38 U.S.C. § 1151. 38 U.S.C. §§ 1151, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from December 1966 to February 1967. In July 2020, he testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). There is conflicting evidence in the record concerning the Veteran’s psychiatric diagnosis. Initially, he was discharged from service due to his pre-existing schizoid personality disorder. Personality disorders are considered congenital or developmental defects which are unrelated to military service and not subject to service connection. 38 C.F.R. § 3.303(c) (2020). However, the evidence of record shows that the Veteran has also been diagnosed with somatic symptom disorder, depression, and anxiety. Additionally, private examiners have noted the Veteran’s posttraumatic stress disorder (PTSD). Accordingly, the Board rephrased the Veteran’s claim to entitlement to service connection for an acquired psychiatric disorder, to include somatic symptom disorder, depression, and anxiety. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). As noted above the Veteran was discharged from service due to what the examiner’s claimed was a pre-existing schizoid personality disorder. A January 1967 Medical Board report noted that the Veteran was seen by a psychiatrist in December 1966 for his multiple somatic complaints with no organic etiology. The Veteran’s background revealed childhood issues with nervousness, frequent episodes of dizziness and severe headaches, excessive nightmares, and nail biting. Additionally, as an adolescent the Veteran was impulsive, depressed, and experienced suicidal ideation. Consequently, testing of the Veteran confirmed a fixed severe personality disorder. The report also noted that his psychiatric issues were not due to or aggravated by service. The Veteran then received a VA examination in January 2014. At the examination the Veteran denied that his depression was related to any in-service injury or event. He reported feelings of chronic depression that began with his early discharge from service as he had hoped to have a career in service. The examiner concluded that the Veteran’s psychiatric issues were not caused by his time in service but were likely in part due to the loss of the possibility of a military career. The Veteran submitted two private opinions from November 2014 concerning his psychiatric conditions. The examiners opined that the Veteran’s depression and anxiety were caused by his in-service mistreatment during bootcamp. The Veteran told the examiners how he was assaulted in service during bootcamp. Unlike the report from the Medical Board, one of the examiners specifically noted that the Veteran had no psychiatric conditions prior to service and his psychiatric issues were caused by his military service. The Veteran received another VA examination in September 2017. The examiner acknowledged the Veteran’s report of in-service assault. However, because the Veteran’s symptoms did not meet the criteria for PTSD with respect to his in service assault, the examiner concluded there was no nexus to service. The examiner then opined that the Veteran’s depression was due to his physical problems and family stressors. The examiner also related his other psychiatric issues to non service related factors. In July 2018, the Veteran submitted a statement from S. W., a social worker who had been seeing him since May 2013. She described his psychiatric symptoms. She also described some of his in-service stressors. She concluded that his psychiatric conditions were “solely a response to his time in the service,” and that he entered service feeling strong and capable and exited to service his country, and that he left service feeling like a failure and at risk of being assaulted at all times. At a March 2019 VA mental health appointment, he reported military sexual trauma. He was diagnosed with major depressive disorder. At his July 2020 Board hearing, the Veteran testified that he had no psychiatric issues prior to service. However, he was continually experienced physical problems in service and went on sick call. The Veteran attributes his condition to his in-service assault. The Veteran testified that he was sexually assaulted and mistreated in service because of going to sick call multiple times. Shortly after service, he began having psychiatric issues including experiencing suicidal ideation. After the hearing, he submitted a statement from Dr. L. W., who summarized his recounting of his military sexual trauma. The Board considers the positive and negative opinions of record and finds that the preponderance of the probative evidence is for the Veteran’s claim. First, the January 2014 VA examiner did not have the information concerning the Veteran’s in-service military sexual trauma, so his negative opinion was not based on that in-service event. Second, while the September 2017 VA examiner considered the Veteran’s assault, the examiner only considered if that in-service event was related to a possible PTSD diagnosis. The examiner concluded that the Veteran did not have PTSD but failed to opine if the traumatic event was related to his depression. The private opinions of record provided competent, credible evidence in support of the Veteran’s claims. These opinions were based on a review of his lay statements, medical records, and mental health treatment of the Veteran. They are afforded more probative weight than the VA examiners’ opinions. Therefore, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Section 1151 Compensation Under 38 U.S.C. § 1151, compensation is awarded for a “qualifying additional disability” in the same manner as if such additional disability or death were service connected. The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). To be considered a “qualifying additional disability” in these circumstances, a disability must meet two criteria. First, it must not be the result of the Veteran’s willful misconduct. Second, the disability must have been either: (a) caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (ii) an event not reasonably foreseeable; or (b) proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. Id; see also Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). To determine whether the Veteran had an additional disability, VA compares the condition immediately before the beginning of the medical or surgical treatment upon which the claim is based to the condition after such treatment has stopped. 38 C.F.R. § 3.361(b). The Veteran contends that compensation is warranted under 38 U.S.C. § 1151 for the loss of his right testicle which he asserts was caused by his hernia surgery at a VA facility in March 2003. The Veteran stated that after his surgery he complained of severe right testicular pain and an ultrasound showed decreased blood flow to his right testicle. In May 2003, he elected to have a right orchiectomy and reported that his pain had resolved. In January 2014, a VA examiner provided an opinion on the connection between the Veteran’s right testicular surgery and his hernia surgery. The examiner noted that after that after the Veteran’s hernia surgery, he reported severe right testicular pain in the postoperative recovery area. An ultrasound was felt to show decreased blood flow to the right testicle. The examiner stated that restricted blood flow issue resolved without need for reoperation, and that a follow up ultrasound the next day was normal. However, the Veteran continued to complain of significant right testicular pain over the next several weeks. Further urologic evaluations could not find the source of the Veteran’s pain. The doctors noted Veteran’s complaints of pain were “…somewhat disproportionate to exam[ination] finding with no identifiable cause of reported pain found…” and his mental conditions were postulated as playing a role. Because there was no response to medical treatment, and he continued to have pain, he elected to have the right orchiectomy surgery in May 2003. The examiner noted however, that while the Veteran’s pain resolved, the pathology report for his right testicle was normal without evidence of ischemic damage, inflammation/orchitis, or other reactive change. There was some evidence of chronic epididymitis which “…was noted but would not have correlated with [the] clinical course of [the] Veteran’s pain.” Thus, the examiner opined that after the Veteran’s hernia surgery he experienced unexplained right testicular pain syndrome which led to his right orchiectomy in May 2003 with clinical resolution of his pain despite the fact that no ischemia or other testicular disorder that might have accounted for the right testicular pain was evident on the pathology report. In November 2017, a VA physician provided a specific opinion concerning his Section 1151 claim. She noted that the operative report details of the hernia surgery “…details routine procedures, findings and no surgical complications.” She noted that there was significant difficulty with pain control after the surgery and there “…was at least some concern that he might be experiencing scrotal ischemia or reduced scrotal blood flow,” and that an ultrasound was done which “…was at least somewhat suggestive of this.” But she explained that “a repeat ultrasound the following day had returned to normal and no ‘ischemic’ or other surgical complication was felt to be present.” After this, she noted that the Veteran continued to report severe right testicular pain over the next several weeks without the urology service being able to identify any clear cause. Multiple treatments did not work. She explained that “multiple urologic and general surgical notes from spring of 2003 detail complaint of pain which seemed disproportionate to exam[ination] findings and a mental health issue was pustulated to be playing a role.” The Veteran underwent an elective orchiectomy. The operative report noted that the testicle was likely nonviable due to altered blood flow and it was removed. The examiner stated that the “[s]ubsequent pathology report, however, indicated that there was NO evidence of either inflammation or ischemic findings (i[.]e[.] that the right testicle was entirely normal).” The examiner stated that she found no evidence of any negligence, carless, lacking in skill, or otherwise substandard care in reviewing the record of these events. The examiner acknowledged that there was “at least some evidence that scrotal blood flow was at least transiently if not more permanently ‘altered’ after the March 2003 inguinal hernia repair, the fact that the testes was normal on pathology report actually argues against this ‘altered blood flow’ hypothesis.” She reemphasized that pain complaints disproportionate to physical findings “…have continued to occur for this veteran (including after the events described above, a transition to chest pain complaints). Indeed, I would note that [the] Veteran has been diagnosed with a somatoform mental health condition and despite ongoing mental health care, he has continued to have significant difficulties, completely unrelated to his hernia history.” She also noted that “even if” ischemic changes had been present, ischemia in an area in which this was a “repeat surgery” would not have amounted to negligence “…as scar tissue was documented in the area as PREEXISTING [sic] this surgery and such scar tissue raises the risk of altered blood flow.” Last, she stated that the Veteran’s contention that his loss of the testicle was the immediate cause of his loss of sexual function is not supported by the record. The examiner notes the Veteran’s past as a smoker, and his heart and hypertension conditions would impact his sexual functioning. She also noted that having an intact left testicle would be adequate for routine testosterone production and sexual function. Therefore, the examiner concluded that the Veteran’s right testicular pain and resulting surgery was not due to VA’s negligence or carelessness. While the Board considers the Veteran’s lay statements that his right testicle pain and subsequent removal was due to the hernia repair provided by VA, providing an etiological opinion falls outside the realm of the common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. While the Veteran is competent to state that he experienced worsening right testicular pain after his March 2003 hernia surgery, he is not competent to conclude that his right testicular pain was due to carelessness, negligence, lack of proper skill, or an event not reasonably foreseeable. The assessments of the VA examiners are of high probative value. The preponderance of the evidence is against the Veteran’s claim, entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for right testicular pain is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.