Citation Nr: 21041734 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-08 646 DATE: July 10, 2021 ORDER Reopening of the previously denied claim of service connection for a condition associated with swollen testicle is granted. REMANDED Entitlement to service connection for a condition associated with swollen testicle is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. An unappealed February 2007 rating decision denied service connection for a condition associated with swollen testicle in the absence of a current disability. 2. The evidence associated with the record subsequent to the February 2007 rating decision is not cumulative or redundant of the evidence at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a condition associated with swollen testicle. CONCLUSIONS OF LAW 1. The February 2007 rating decision that denied the Veteran's service connection claim for a condition associated with swollen testicle is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the previously denied claim of service connection for a condition associated with swollen testicle have been met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from October 1973 to October 1975. This case comes before the Board of Veteran's Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. At that time the Veteran and his representative requested that the record be held open for 60 days for submission of additional medical evidence. However, no additional evidence has been submitted. The Board notes that the Veteran filed a claim seeking service connection for posttraumatic stress disorder (PTSD). A claim for an acquired psychiatric disorder includes any disorder that is reasonably encompassed by the claimant's symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the claim is recharacterized as a claim of entitlement to service connection for any acquired psychiatric disorder, however diagnosed. New and Material Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In a February 2007 rating decision, service connection was denied for a swollen testicle condition based on finding that there was no current condition. The Veteran did not appeal this decision, and no relevant additional evidence was received within the year after notification of the decision. It became final. The evidence received since the February 2007 decision includes evidence that is both new and material. Based on the Veteran's testimony he alleged and described in detail new, additional manifestations associated with his testicle. His allegations require additional development, and so reopening is warranted. Additionally, the Veteran testified that his condition started in-service and had continued since service. He testified that he was seen by Dr. B for his current condition. As discussed above, this new evidence relates to unestablished facts necessary to substantiate the claims for service connection for a condition associated with swollen testicle. The Veteran's testimony concerning his current condition is new and material, and the claim is therefore reopened. REASONS FOR REMAND Swollen Testicle In February 2020, the Veteran testified that he was seen by his local doctor, Dr. B, for complaints of a swollen testicle. He indicated that while in-service he fell from a truck and it caused him to have pain in his testicle. He noted that eventually they found a tear and he had it repaired. He reported that presently when he walked too much his testicle would swell. The Board notes that the Veteran has not been afforded a VA examination. There is no medical opinion as to whether the Veteran's claimed condition is related to his military service based on these or any other allegation. Where there is evidence of a current disability and an in-service incident or injury, and the possibility of a nexus between them, remand is required to obtain an examination and medical opinion. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Right Knee In June 2016, the Veteran was afforded a VA examination. The VA examiner provided a negative nexus opinion and noted that he did not have a current right knee condition. He noted that the Veteran's current symptoms were directly attributable to the well-documented nerve impingement of the lumbar spine (L3-L5), which resulted in sciatic radiculopathy. Recent VA treatment records documented that the Veteran was treated for right knee arthralgia and was prescribed medication for this condition. Non-neurological symptoms are repeatedly indicated. Given that the Veteran has a possible new and different current condition, a new VA examination is warranted. The Board finds that an additional VA examination to identify all current right knee condition and all complication associated with his condition. Acquired Psychiatric Disorder The Veteran has reported a stressful event while in service in Germany, when he witnessed a man killed when a tank gun barrel struck him in the chest and pinned him. In November 2016, the RO determined that there was insufficient evidence to warrant referral of the allegation for verification, when the Veteran did not respond to a request for additional specific details. However, the Veteran did identify the unit involved and a very general time frame. The preference for a two month period for the event is not a requirement of the Veteran, but of the verifier. On remand, efforts to verify the stressor event must be undertaken. Additionally, the Veteran has not been afforded a VA examination for his acquired psychiatric disorder. The Veteran testified that while in-service he saw a tank run into another tank, which caused the commander to be pinned by the tank. He indicated that he felt helpless since he was not able to help the solider. He stated that this incident caused his psychiatric disorder. He indicated that he was diagnosed and treated for PTSD. VA treatment records documented that the Veteran was diagnosed and treated for depression. There is no medical opinion as to whether the Veteran's claimed acquired psychiatric disorders are related to his military service based on these or any other allegation. Where there is evidence of a current disability and an in-service incident or injury, and the possibility of a nexus between them, remand is required to obtain an examination and medical opinion. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Records The Veteran testified that he was seen by Dr. JPG, Dr. B, and Dr. W for his claimed conditions. Those records are not associated with the claims file. The Veteran requested 60 days to submit evidence from his private providers. To date, the Veteran has not submitted any private medical records regarding his claimed conditions on appeal. The Veteran is reminded that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Take all required actions to obtain additional relevant VA treatment records, and to obtain identified private treatment records. 2. Take appropriate steps to research records of Company B, 1st Battalion, 87th Infantry, for the incident described by the Veteran between January 1973 and January 1975. If multiple requests are necessary to encompass the entirety of the service period, such must be undertaken. 3. The Veteran should be afforded a VA male reproductive condition examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current disabilities of the testicle, and for each, must opine as to whether such is at least as likely as not caused or aggravated by military service. 4. The Veteran should be afforded a VA knee condition examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current disabilities of the right knee, and for each, must opine as to whether such is at least as likely as not caused or aggravated by military service. Neurological and orthopedic conditions must be discussed and distinguished to the extent possible. 5. Schedule the Veteran for a VA mental disorders/initial PTSD examination. The claims file must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed acquired psychiatric disorders. The examiner must opine as to whether it is at least as likely as not that any currently diagnosed psychiatric disorder was caused or aggravated by service. For purposes of examination, the reported stressor event should be considered verified. 6. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.