Citation Nr: 1648496	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  08-33 851	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a right hydrocele.


REPRESENTATION

Appellant represented by:	Ralph J. Bratch, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from April 1974 to April 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, in pertinent part, the Veteran's claim of service connection for a right hydrocele.  The Veteran disagreed with this decision in March 2008.  He perfected a timely appeal in October 2008.  A Travel Board hearing was held at the RO in June 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record.  Having reviewed the record evidence, to include the Veteran's hearing testimony, the Board finds that the issue on appeal should be recharacterized as stated on the title page of this decision.

In November 2010 and in October 2014, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed that the AOJ attempt to obtain the Veteran's updated treatment records and schedule him for appropriate examinations to determine the nature and etiology of his claimed right hydrocele.  The identified records subsequently were associated with the claims file and the requested examinations occurred in December 2010 and in May 2016.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In July 2015, the Veteran revoked his former power of attorney and submitted a new VA Form 21-22a in favor of his current attorney.

This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.


FINDINGS OF FACT

1.  The record evidence indicates that the Veteran experienced a right hydrocele during active service which was acute, transitory, and resolved with in-service treatment.

2.  The record evidence indicates that the Veteran does not experience current disability due to his remote right hydrocele which is attributable to active service.


CONCLUSION OF LAW

The criteria for service connection for a right hydrocele have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

VA's duty to notify was satisfied by a letter dated in May 2013.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini, 18 Vet. App. at 112.  Here, all relevant notice was provided in a timely manner to the Veteran.  And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication.  See Mayfield, 444 F.3d at 1328.

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the the Board, which he did in June 2010.  Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C.A. § 5103A(c)(2).  All records pertaining to the conditions at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA also must seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)).  It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's electronic paperless claims files in VVA and in VBMS have been reviewed.  The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In March 2016, 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, 789 F.3d at 1375.  Because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary.

The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disability and active service.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations.  Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision.  See also 38 C.F.R. §§ 3.326, 3.327, 4.2.  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

Service Connection for a Right Hydrocele

The Veteran contends that he incurred a right hydrocele during active service, specifically as a result of in-service duties where he was running and not wearing sufficient support undergarments.  He alternatively contends that he experiences current disability due to a right hydrocele which is related to active service.

Laws and Regulations

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999).

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)).  Because a right hydrocele is not recognized explicitly as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim.

It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case.  When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

Factual Background and Analysis

The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a right hydrocele.  As noted above, the Veteran essentially contends that he incurred a right hydrocele during active service as a result of in-service duties where he was running and not wearing sufficient support undergarments.  He alternatively contends that he experiences current disability due to a right hydrocele which is related to active service.  The record evidence does not support his assertions regarding the existence of current disability due to a right hydrocele which could be attributed to active service, although it shows that he experienced a right hydrocele during service.  For example, the Veteran's available service treatment records show that he denied all relevant pre-service medical history at his enlistment physical examination in March 1974.  Clinical evaluation of his genitourinary system was normal.  

On outpatient treatment in April 1975, the Veteran complained of a swollen testicle.  Physical examination showed a slightly swollen right testicle.  The assessment was a question mark.  

In May 1975, the Veteran complained of a swollen right testicle.  Physical examination showed a hydrocele around the right testicle.  The assessment was a hydrocele around the right testicle.

In May 1976, the Veteran complained of a swollen right testicle.  Objective examination showed a hydrocele of the right testicle.  The assessment was a question mark.  The Veteran was advised to use scrotal support.

On urology consult in June 1976, physical examination showed minimal fluctuance of the right testicle.  The assessment was very mild right hydrocele.

The Veteran denied all relevant medical history at his separation physical examination in January 1977.  Clinical evaluation of his genitourinary system was normal.  The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").

The post-service evidence also does not support granting the Veteran's claim of service connection for a right hydrocele.  It shows instead that the Veteran does not experience any current disability due to a right hydrocele which could be attributed to active service.  For example, on VA genitourinary examination in December 2010, the Veteran's complaints included a right testicle which was larger than his left testicle and intermittent right testicle pain with walking and running.  The Veteran's in-service history of a right hydrocele was noted.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  Physical examination showed normal testicles.  The VA examiner concluded that there were no objective findings on examination of a right testicle condition and no right testicular diagnosis.  This examiner also opined that it was less likely than not that the Veteran's claimed right testicle condition was incurred in or aggravated by active service.  The rationale for this opinion was that there was "no diagnostic evidence of a current testicular condition."

On VA male reproductive system conditions Disability Benefits Questionnaire (DBQ) in September 2016, the Veteran's complaints included intermittent right testicle pain and an enlarged right testicle since his in-service right hydrocele.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  Physical examination showed normal testes.  A scrotal ultrasound also showed normal testicles.  The VA examiner opined that it was less likely than not that the Veteran's claimed right hydrocele was related to active service.  In an extremely lengthy opinion rationale, the VA examiner stated that "there is definite evidence that [the Veteran] suffered from a right hydrocele while in service."  He stated that a hydrocele can develop at birth and resolve within the first year of life or develop a result of scrotal injury or inflammation.  He also stated:

[The Veteran's] Hydrocele was likely due to a scrotal injury sustained by the lack of supportive underpants or undergarment while exercising the assigned duties as a soldier, such as running, marching, etc. There is no obvious evidence in his [service treatment records] that he suffered an infection at that time of any type, including epididymitis (i.e., he did not suffer epididymitis).

This VA examiner noted a conflict between the Veteran's reported post-service history of a continuity of symptomatology of right testicle pain and the lack of post-service complaints or treatment for this claimed disability.  He also noted that, despite the Veteran's reported history, he never sought medical treatment for his claimed right testicle pain even when seen for other genitourinary problems after service.  This examiner found no evidence of a right hydrocele in the Veteran's post-service urology treatment records as well.  This examiner concluded:

[The] right hydrocele during service was a transient condition that did not become recurrent, permanent or chronic.  Moreover, the [Veteran's] recent scrotal ultrasound attests to the normality of his scrotal organs other than small bilateral benign, painless epididymal cysts and a mild painless left varicocele but no evidence at all of hydrocele.  Such small bilateral epididymal cysts and the mild left varicocele were not identified during service for which it is presumed to have developed some undetermined time after service and not related at all to the hydrocele that he suffered during service and neither the cause nor the result of the remote right hydrocele.

The diagnoses included right hydrocele diagnosed in May 1975.

The Veteran contends that he incurred a right hydrocele during active service, experienced continuous right testicle pain since service due to the in-service right hydrocele, and currently experiences a right hydrocele which is related to active service.  Despite the Veteran's assertions to the contrary, the evidence shows only that he experienced a right hydrocele during active service which was acute, transitory, and resolved with treatment (as the VA examiner noted in May 2016).  Both the VA examiners in December 2010 and in May 2016 found no current right testicular condition which could be attributed to active service, although the May 2016 VA examiner acknowledged the 1975 in-service diagnosis of a right hydrocele.  Repeated physical examination of the Veteran also showed normal testicles.  Both the VA examiners who saw the Veteran in December 2010 and in May 2016 opined that it was less likely than not that his claimed right hydrocele was related to active service or any incident of service.  These opinions were fully supported.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  

A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability.  Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection is not warranted in the absence of proof of current disability.  The Board has considered whether the Veteran experienced a right hydrocele at any time during the pendency of this appeal.  Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  In this case, although the Veteran experienced a right hydrocele during active service, this in-service complaint was acute, transitory, and resolved with treatment.  And there is no evidence of a current right hydrocele which could be attributed to active service.  The Veteran finally has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to service connection for a right hydrocele.  In summary, the Board finds that service connection for a right hydrocele is not warranted.

In this decision, the Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan, 451 F.3d at 1337; Barr, 21 Vet. App. at 303.  In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has asserted that his symptoms of a right hydrocele have been continuous since service.  He asserts that he continued to experience symptoms relating to a right hydrocele (right testicle pain and swelling) after he was discharged from service.  In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a right hydrocele after service separation.  Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible.  

The Board finds that the Veteran's more recently-reported history of continued symptoms of a right hydrocele since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any relevant history or complaints of symptoms.  Specifically, the service separation examination report reflects that the Veteran was examined and his genitourinary system was found to be normal clinically.  His in-service history of symptoms at the time of service separation is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  

The post-service medical evidence does not reflect complaints or treatment related to a right hydrocele for several decades following active service.  The Veteran himself testified at his June 2010 hearing that he had not sought treatment for his claimed right hydrocele after his service separation.  See Board hearing transcript dated June 15, 2010, at pp. 9.  The Board emphasizes the multi-year gap between discharge from active service (1977) and initial reported symptoms related to a right hydrocele when he was seen for VA examination in December 2010 (a 33-year gap).  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability).

The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including major depressive disorder, hepatitis C, and a skin condition.  Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to a right hydrocele.  Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

He did not claim that symptoms of his disorder began in (or soon after) service until he filed his current VA disability compensation claim.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories.  See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). 

These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service.  See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).  

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, his previous statements made for treatment purposes, and the record evidence showing no current disability or etiological link between his claimed right hydrocele and active service.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation.


ORDER

Entitlement to service connection for a right hydrocele is denied.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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