Citation Nr: 21042343 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 03-33 782 DATE: July 12, 2021 ORDER Entitlement to service connection for a penile lesion, including as secondary to service-connected epididymitis, is denied. FINDING OF FACT The Veteran's penile lesion was not caused or aggravated by his service-connected epididymitis, including by the medication he takes for that disability, and is not otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for the penile lesion, including as secondary to the service-connected epididymitis. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to March 1965. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2002 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). That decision denied service connection for epididymitis. In October 2008, during the pendency of this appeal, the Veteran and his wife testified at a hearing before a Veterans Law Judge (VLJ) of the Board in Washington, DC, in other words at a Central Office (CO) hearing. A transcript of the hearing is of record. In December 2008, so relatively shortly after that hearing, the Veteran additionally claimed entitlement to service connection for a penile lesion including as secondary to his epididymitis. In December 2015, the Board, in relevant part, denied this derivative claim for service connection for the penile lesion. The Veteran appealed that denial of this claim to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In May 2017, the Court issued a Memorandum Decision vacating the Board's denial of this claim for service connection for a penile lesion and remanding this claim back to the Board for further proceedings consistent with the Memorandum Decision. The Board, in turn, remanded this claim back to the RO (AOJ) in October 2017, January 2020, and October 2020 for needed further development and consideration. But, each time, the RO (AOJ) continued to deny the claim, so it is again before this Board. That most recent remand, in October 2020, resulted in obtaining a March 2021 medical opinion regarding the effects of the Veteran's medications on his claimed condition. There has been the required compliance, certainly the acceptable substantial compliance, with the remand directives including as concerning this. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than "strict" or "exact" compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Consider also that, because the VLJ that presided over the Veteran's hearing is no longer employed at the Board, since having retired, in a May 2021 letter the Veteran was offered another hearing before a different VLJ that ultimately would decide this appeal. That letter made clear that, if the Veteran did not respond within 30 days of the date of that letter, the Board would assume he did not want another hearing and proceed with re-adjudication of his claim. Having not received a response requesting another hearing, the Board is doing just that. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. This appeal has been advanced on the Board's docket (AOD). See 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). As a final preliminary note, the record contains a statement filed by the Veteran's spouse dated May 19, 2021, requesting he be awarded a 100 percent rating overall. Her filing does not allege he is unemployable due to his service-connected injuries, nor did she file it as part and parcel of an increased rating claim, as might give rise to a claim for a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, as she is not his duly authorized representative in this appeal, her letter did not indicate any desire for an additional hearing before a claim currently on appeal, and her communication does not indicate any intent to apply for a particular benefit, per se, over which the Board presently has jurisdiction, the Board is not required to act on her communication. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155. Entitlement to service connection for a penile lesion, including as secondary to service-connected epididymitis The primary basis of this claim is that the Veteran's penile lesion is secondary to, meaning caused or aggravated by, a service-connected disability namely, his epididymitis. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The evidence of record clearly establishes an area of permanent discoloration on the Veteran's penis, which in a prior remand of this claim the Board characterized more generically as a genital skin disability. As such, a current disability is established. However, there still must be attribution of this disability to his military service to, in turn, establish his entitlement to service connection for it including, as he is specifically alleging, by way of his service-connected epididymitis. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's service treatment records (STRs) do not reflect treatment for or complaints of the claimed condition or other penile lesion in service, though he was treated for gonorrhea and epididymitis. In 1989, his urologist noted an area of discoloration without an open lesion. From the early 2000s onward, the record reflects the claimed condition and treatment for separate, discrete symptoms, as follows: medicated cream for chafing between September and December 2001; self-report of a scab in August 2011; dryness in September 2011; differential diagnoses of psoriasis, lichen planus of penis, pyogenic granuloma, or other vascular growth in November 2011; differential diagnoses of psoriasis, lichen planus, pyogenic granuloma, or another vascular growth in March 2012; a scaly plaque with differential diagnoses of dermatitis, herpes simplex, fixed drug eruption, psoriasis, and lichen planus in March 2013; and a report of inflammation and irritation with an impression of balantitis in August 2014. Notably, none of these treatment records identify any connection or even discussion of a possible connection between his claimed condition, epididymitis, and these discrete symptoms. Further, neither he nor his provider attribute any of these diagnoses to his service, his claimed condition, gonorrhea, or epididymitis. This is particularly notable because other, concurrent treatment notes clearly reflect discussion of his in-service gonorrhea, epididymitis, and sterility, prompted by him or his provider. However, there simply are no similar notes regarding the claimed condition and epididymitis or gonorrhea or these various symptom manifestations. The record also contains several VA medical opinions finding no correlation ("nexus") between the claimed condition and the Veteran's service either directly or, as he is specifically alleging, in the way of being caused or aggravated by his service-connected epididymitis. All medical opinions prior to May 2017, so before this case was decided by the CAVC, have been addressed by the CAVC, the Board, or both, and will not again be addressed in detail here. Suffice to say those opinions were not supportive of the claim, even if not sufficient reason for the CAVC to affirm the Board's prior denial of this claim. On remand from the CAVC, so after May 2017, the Veteran underwent a VA examination in February 2019, and the RO obtained medical opinions in February 2019, August 2019, March 2020, and March 2021 regarding these determinative issues of causation and aggravation intrinsic to a claim predicated on the notion of secondary service connection. The Board found the February and August 2019 opinions insufficient for adjudication purposes on grounds articulated in the Board's January 2020 remand. In October 2020, the Board again remanded this claim for still additional comment, but tacitly accepted certain findings from the March 2020 VA medical opinion namely, that the Veteran's claimed condition is not proximately due to, the result of, or aggravated by his service-connected epididymitis itself. In still remanding, the Board noted the VA examiner's finding that the two were unrelated and did not comment further regarding the epididymitis. Instead, the Board remanded for an addendum opinion regarding the effects of epididymitis and balantitis medications tamsulosin and doxycycline in relation to the claimed condition not for an opinion regarding epididymitis itself. The resulting March 2021 medical opinion explained that the claimed disability is a remnant discoloration of the glans without active pathology and, as such, cannot cause, aggravate, or be aggravated by an active condition. Consistent with the remand, the commenting examiner further found that the Veteran's balantitis, since resolved, was unrelated to his claimed disability or his service-connected epididymitis. The examiner explained that epididymitis is an internal inflammation of the epididymis, which is unrelated anatomically and pathophysiologically to balantitis, which is caused by bacteria or fungal infections. The examiner also found that the Veteran's medications, specifically tamsulosin and tetracycline, would not cause or aggravate balantitis, as they are used to treat the same. As such, the Board finds no probative (competent and credible) medical evidence attributing the Veteran's claimed disability, or attributing aggravation of his claimed disability, to his service-connected epididymitis or the medications used to treat the same. There is no medical evidence that the claimed condition began in service or is otherwise related or attributable to his service. There is medical evidence of penile discoloration in 1989, although as noted by the March 2021 examiner there is no evidence this discoloration was aggravated, or could have been aggravated, in its inactive state. While a lack of medical evidence supporting the attribution of a claimed condition to military service or service-connected disability does not always defeat a claim, it is a crucial element of the record that the Board cannot ignore, particularly in such a well-developed case with such an extensive record. In evaluating a claim, the Board must consider all pertinent evidence, lay and medical. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). In cases involving combat, VA is prohibited from drawing a negative inference from silence in the STRs. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Conversely, in cases, as here, where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service [or where, as here, the injury claimed is not alleged to have occurred in combat], the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements.). Buchanan had held that lay evidence such as that proffered by the Veteran and his comrades is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). In this circumstance, that is, where a claimed injury, disease or event is not alleged to have occurred during combat, the Board must make two preliminary findings to rely on this negative inference (see Kahana): 1. First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. 2. If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. So, it is true the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, as mentioned there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan, 451 F.3d at 1336. The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). That said, there are also circumstances where the Board may make findings that lay statements are beyond the competence of the giver, or that the statements are not credible, or the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau, 492 F.3d at 1377 n.4 (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). Here, after a careful and thorough review of the entire record, the Board does not find that the Veteran's lay statements establish service connection for the claimed disability. At his February 2019 examination, he stated that his penile lesion first appeared sometime in 1964 and last appeared in January 2019, which he treated with cream for that purpose. None of his statements on record indicate what symptoms require treatment, how he treats them, or if they are different from the discrete diagnoses previously described. At his prior examinations, lesion onset was reported as sometime between 1979 and 1989, depending on the examination. After comprehensively reviewing the record on appeal, no relevant treatment notes or medications were located in late 2018 or in 2019. The Veteran has not submitted any other statements, testimony, or medical evidence regarding this claimed condition. Generally, a Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such reporting to sick call or experiencing the onset of a penile lesion. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As such, he is competent to report observable symptom onset and treatment history. However, the Board may take into account that his statements are internally inconsistent on record. Further, as a layman, he is not competent to offer an opinion regarding the etiology of his symptoms and the medical cause of the characteristic discoloration, particularly when those symptoms occurred years after the onset of his service-connected epididymitis. See Jandreau, 492 F.3d at 1377-33; see also Davidson, 581 F.3d at 1316. Such an assertion is not a simple question within the realm of knowledge of a layperson or can it be determined based on personal observation by a lay person. Id. The Veteran's lay assertion that his claimed condition was caused by his epididymitis is not competent to establish a nexus between his observed symptoms and his claimed disability. Consequently, the Board gives more probative weight to the several VA medical opinions addressing this determinative issue, ultimately concluding that his claimed penile lesion is not directly due to his service and not secondary to (again, meaning caused or aggravated by) his service-connected epididymitis. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For these reasons and bases, the Board finds that service connection for a penile lesion is not warranted, either on the premise it is a direct result of the Veteran's service or, as is being specifically alleged, secondary to his epididymitis. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, Associate 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.