Citation Nr: 0005808 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-00 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen claim for postoperative left orchiectomy. 2. Entitlement to service connection for hypertension due to testosterone therapy for impotency due to postoperative orchiectomy REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. R. Gleeson, Associate Counsel INTRODUCTION The veteran served on active duty for training from March 1983 to November 1983, and on active duty from June 1984 to March 1987. He also had a period of active duty from May to August 1989, with a dishonorable discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO) which denied the veteran's claims. The veteran testified at a personal hearing at the RO in April 1998. FINDINGS OF FACT 1. By an unappealed decision dated in May 1994, the RO denied the veteran's claim for service connection for hernia repair and removal of left testicle. 2. Subsequent to the RO's May 1994 decision, the veteran submitted evidence which bears directly but not substantially upon the specific matter under consideration, is neither cumulative nor redundant, but is not so significant that it must be considered to decide fairly the merits of the claim for service connection for hernia repair and removal of left testicle. 3. There is no competent medical evidence of a nexus between the veteran's hypertension and his period of active service. CONCLUSIONS OF LAW 1. The RO's decision of May 1994 denying service connection for hernia repair and removal of left testicle is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991) and §§ 7103, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1103 (1999). 2. The evidence received since the May 1994 RO decision is new but not material; thus, the requirements to reopen the claim of entitlement to service connection for hernia repair and removal of left testicle have not been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim for service connection for hypertension is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hernia repair and removal of left testicle The veteran's original claim for service connection for hernia repair and removal of left testicle was denied in May 1994. He filed a notice of disagreement (NOD), however he failed to file a substantive appeal within 60 days of the issuance of the RO's statement of the case, or within one year from the date of mailing of the RO's rating decision. The law provides that a NOD must be filed within one year from the date of mailing of notice of the result of an RO's determination in order to initiate an appeal of the determination. 38 U.S.C.A. § 7105(a), (b)(1) (West 1991); 38 C.F.R. § 20.302(a). After the timely filing of a NOD, the RO must issue a statement of the case to the veteran setting forth the issues on appeal and all pertinent evidence and laws. 38 U.S.C.A. § 7105(d)(1). Thereafter, the veteran has 60 days or until the expiration of the one-year period from the date of mailing of the RO's determination to file a formal appeal. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). If the veteran fails to file a formal appeal within the requisite time period, the Board has no jurisdiction over the appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.202. As the veteran in this case did not file a substantive appeal within 60 days of the issuance of the statement of the case or within the one-year period after issuance of the RO's May 1994 determination, that determination is final. Id.; 38 C.F.R. §§ 20.302, 20.1103 (1999). Once an RO decision becomes final under 38 U.S.C.A. § 7105(a), absent the submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by the VA. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New evidence, submitted to reopen a claim, will be presumed credible solely for the purpose of determining whether the claim has been reopened. Winters v. West, 12 Vet. App. 203 (1999). On appellate review, the Board must consider all evidence submitted since the claim was finally disallowed. See Elkins v. West, 12 Vet. App. 209 (1999). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a). If the veteran has submitted new and material evidence under 38 C.F.R. § 3.156(a)(1999), the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. If the claim is well grounded, the duty to assist must be fulfilled and then the claim is evaluated on the merits. Id. At the time of the May 1994 decision the following relevant evidence was of record: service medical records; VA outpatient record, dated August 1986; U.S. Army hospital outpatient medical records, dated July to August 1990; and VA examination report dated in May 1994. Service medical records show that at entrance to service in June 1984, the veteran's left testicular abnormality was noted; however, it was described as absence of left testicle due to surgical removal. Approximately one year later, in July 1985, the veteran had complaints of left testicular retraction. He gave a history of a bilateral orchiopexy as a child at age four. After examination, he was scheduled for orchiopexy, in order to surgically descend the left testicle into the scrotal sac. The surgical report states that the veteran was status-post left orchiopexy at age twelve. Orchiopexy was planned, but during surgery the structures of the testicle were noted to be so densely adherent that it was impossible to mobilize the testicle without interruption of blood supply. Thus, it became necessary to amputate the testicle, accomplishing an orchiectomy instead of orchiopexy. There were no further complications. Service medical records further reflect treatment in October 1986 when the veteran complained of bilateral groin pain. He gave a history of childhood bilateral orchiopexy at age six and left inguinal hernia repair and orchiectomy in August 1985. No hernia was noted and the right testicle was normal. After discharge in March 1987, the veteran re-enlisted in the Army in May 1989. At his enlistment examination, the absent left testicle was noted. Service medical records for the remainder of the latter period of service reflect pain and tenderness at the site of the scar. The VA outpatient record, dated in August 1986, reveals that the veteran underwent semen analysis as part of infertility studies. No spermatozoa were present. The veteran later apparently moved to Germany and was treated at a U.S. Army hospital as the dependent of a service member. Records dated in July and August 1990 show that the veteran was continuing to undergo semen analysis, but results were not available. In May 1994, a VA examination was performed. The veteran complained of numbness at the site of the left inguinal herniorrhaphy and orchiectomy scar. There was no recurrence of hernia, the surgical scar was nontender, but with an area of hypoesthesia to pinprick around the scar. The RO concluded in May 1994, based on the evidence described above, that the veteran had a history of left inguinal and testicle repair prior to service, and that surgical treatment during service was performed to correct a pre-existing condition. Subsequent to the May 1994 decision, the following relevant records have been associated with the claims file: report of VA examination, dated in October 1997; statement of veteran's wife, dated in February 1998; letter from Brian V. Wiethop, M.D., dated in January 1998; transcript of personal hearing, dated in April 1998; opinion of VA urologist, dated in January 2000; statements of the veteran. The report of VA examination dated in October 1997 includes information from the veteran that he is infertile. The veteran gave a history of right herniorrhaphy and orchiopexy in approximately 1975 because of congenital undescended testis on the right. He also gave a history of left inguinal herniorrhaphy and incidental orchiectomy in 1985. On examination the left testis was absent and right testis was high riding and nontender. There were no nodules. There was no evidence of hernia on the left and, on the right, it was difficult to ascertain due to the high riding testicle. Diagnosis was infertility by history. The January 5, 1998 letter from Dr. Wiethop indicates that tests show the veteran has low testosterone, and it suggests testosterone replacement therapy. The veteran testified at his April 1998 hearing that he underwent surgery in 1974 at DePaul's hospital because his testicles were not descended. According to the veteran, after that he did not have any pain. He stated that while in service he felt pain in his groin after lifting a shuffleboard. He was told he had a hernia and needed an operation. According to the veteran, at the time he had the surgery, his testicle was not "up", because he had been aware of this condition since childhood and would have noticed if the testicle were "up". When he woke up from the surgery and learned that his left testicle had been removed, the veteran was very upset, but the operating physician informed him his fertility would not be affected. At the hearing, the veteran was asked to fill out a release form so that records from his childhood surgery could be obtained; however, no such release form was received. Written statements of the veteran and his wife describe effects on their marriage of the veteran's infertility. The January 2000 memorandum from a VA urologist was written in response to questions posed by the Board as to whether activities in service caused the veteran's left testicle to retract, thereby necessitating the orchiectomy. According to the memorandum, after review of the records, the urologist concluded that the veteran was born with bilateral cryptorchidism, which was repaired in childhood. Upon entering the service, the veteran had an abnormal left testicle, which was not entirely descended into the testicle and was demonstrably smaller than the right testicle. At the time he underwent orchiectomy in service (August 1985), the testicle was noted to lie in the external ring and to be surrounded by densely adherent tissue. According to the opinion, cryptorchid testes do not develop normally, and will deteriorate and likely result in infertility if not repaired at an early age. It was unclear from the records in the claims file at what age the veteran had his original orchiopexy performed, and orchiopexy at an early age is critical for future fertility. The opinion concludes that it is more unlikely than not that activities in service such as marching, bending and lifting would cause a testicle to retract from a normal anatomical position and then fix itself in a very high position, and to be surrounded by densely, adherent tissues, as described by the August 1985 operative report. The Board concludes that while some of the evidence submitted is new, it is not material to outcome of the claim, and the claim need not be reopened. The new evidence further reinforces that the veteran was born with a congenital abnormality, by which his testicles were not descended properly into the scrotal sac. While in service, the veteran developed a hernia for which he underwent surgical repair. As part of the repair, the surgeon attempted to move the high-riding left testicle into the scrotal sac. However, due to the pre-existing congenital condition, the surgeon was unable to accomplish the orchiopexy and was left with the alternative of removal of the testicle, which was performed. Although a veteran may be entitled to service connection for aggravation of a pre-existing condition, if there is worsening of the condition beyond its natural progression, in this case, there is no evidence that incidents of service caused such a worsening. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Rather, the conclusion of the VA urologist was that due to the congenital condition, noted at entrance to service, the orchiectomy was necessary, and was not caused by lifting, marching or bending. The Board finds that the veteran's pre-existing condition was not aggravated by service, but rather progressed independently. As new and material evidence suggesting otherwise has not been submitted, the claim is not reopened. Hypertension The veteran claims that he developed hypertension secondary to the taking of drugs for infertility, and that his infertility is caused by orchiectomy in service. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred in or aggravated in the line of duty while in the active military, naval, or air service. See 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303. The threshold question for the Board is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. See 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well- grounded claim there is no duty to assist the claimant in developing the facts pertinent to his claim and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). To establish that a claim for service connection is well grounded the appellant must demonstrate the existence of a current disability, the incurrence or aggravation of a disease or injury in service, and a nexus between the current disability and the in-service injury. Lay or medical evidence, as appropriate, may be used to prove service incurrence. Id. at 1468. Medical evidence is required to provide the existence of a current disability and to fulfill the nexus requirement. Id. at 1467-68. Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that that same condition currently exists. This evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Finally, a veteran may be entitled to service connection for certain diseases on a presumptive basis, if developed within a certain period following service. 38 C.F.R. § 3.307(a)(3). Service connection is awarded for hypertension if manifest to a compensable degree within one year of separation from service. 38 C.F.R. § 3.309(a). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a). A claim for secondary service connection, like all claims, must be well grounded. Reiber v. Brown, 7 Vet. App. 513, 516 (1995). The record, including October 1997 VA examination, shows that the veteran currently has hypertension. At the veteran's April 1989 enlistment examination, he had a blood pressure reading of 166/100. The Board requested an opinion from an expert VA physician as to whether the veteran's hypertension could be etiologically related to testosterone replacement therapy. The responsive opinion, dated in January 2000, signed by a VA nephrologist, states that the author reviewed the veteran's medical records and observed that hypertension developed some time between January 1987 and April 1989. He was said to have begun testosterone therapy in 1989, but in April 1989 he indicated he was taking no medications, and at a hospitalization in August 1989 he also stated he was taking no medications. The nephrologist further explained that the relationship between testosterone therapy and hypertension is not well established in medical literature, although some linkage has been demonstrated in one animal study and some weight gain is also associated with testosterone therapy. However, notwithstanding the tenuous relationships between testosterone therapy, weight gain and hypertension reported in medical literature, the occurrence of high blood pressure readings in the veteran prior to the initiation of testosterone therapy makes it unlikely that the veteran's hypertension was etiologically related to testosterone replacement therapy. In this case, the veteran is claiming service connection for hypertension secondary to his in-service orchiectomy; however, he has not been granted service connection for the orchiectomy. Thus, the veteran is clearly not entitled to hypertension on a secondary basis. Moreover, the opinion of the nephrologist dated in January 2000 was that the occurrence of high blood pressure prior to the initiation of testosterone therapy make it unlikely that hypertension was etiologically related to hormone therapy. Finally, there is no medical evidence that the veteran developed hypertension during service or within the one-year period thereafter; thus, service connection on a direct basis is likewise not warranted. The Board concludes that the claim for service connection is not well grounded. ORDER Service connection for postoperative left orchiectomy is denied. Service connection for hypertension is denied. BRUCE KANNEE Member, Board of Veterans' Appeals