BVA9503685 DOCKET NO. 92-04 833 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for atrophy of the right testicle. 2. Entitlement to an increased (compensable) evaluation for residuals of a right inguinal herniorrhaphy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION The veteran had active military service from July 1953 to July 1956. He is also credited with eight years of service in the National Guard terminating in January 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 1991 rating decision from the Department of Veterans Affairs (VA) Portland, Oregon, Regional Office (RO). The case was previously before the Board in July 1993 at which time it was remanded for further development. The case is now before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL With respect to the veteran's claim for service connection for an atrophied right testicle, the veteran contends, essentially, that the atrophied right testicle is the result of a hernia operation he underwent in service in 1954 and, therefore, service connection for this disorder is warranted. With respect to the claim for an increased evaluation for residuals of a right inguinal herniorrhaphy, it is alleged, in essence, that the veteran's hernia residuals are increasingly symptomatic and, therefore, a compensable evaluation is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidentiary record is against the veteran's claim for a compensable evaluation for the residuals of a right inguinal herniorrhaphy and that the claim for service connection for a right atrophied testicle is not well grounded and must be dismissed. FINDINGS OF FACT 1. The RO has attempted to obtain all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The evidentiary record in its entirety does not demonstrate and the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that he has an atrophied right testicle as a result of service, or as a result of the service-connected residuals of a right inguinal herniorrhaphy. 3. The evidentiary record does not demonstrate that the veteran currently has a recurring right inguinal hernia. 4. VA attempted to schedule examinations for the veteran on two occasions. He indicated each time that he did not wish to report for examination. CONCLUSIONS OF LAW 1. The claim for service connection for a right atrophied testicle is not well grounded. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303(b)(d), 3.310(a) (1994). 2. The criteria for a compensable evaluation for residuals of a right inguinal herniorrhaphy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.655(b), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 7338 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Claim for Service Connection for a Right Atrophied Testicle The veteran's claim with respect to atrophy of the right testicle, for reasons set forth in the following paragraphs, is not well grounded. As such no further assistance is required on the part of VA to develop this claim. 38 U.S.C.A. § 5107(a). Under the applicable law and regulations, service connection may be established for a chronic disability resulting from personal injury suffered or disease contracted in the line of active duty, or during active duty for training, or for a chronic disability resulting from an injury sustained during inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 1991); 38 C.F.R. § 3.303(b) (1994). Additionally, the veteran can prevail if the evidentiary record demonstrates that he currently has a right atrophied testicle that resulted from or was proximately due to the residuals of a service-connected right disorder. 38 C.F.R. § 3.310(a) (1994). The applicable regulations also provide that service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). It is not contended or otherwise alleged that the right atrophied testicle happened as a result of disease or injury incurred on active duty for training, or as a result of an injury that occurred during inactive duty for training during the veteran's period of National Guard service. Instead, it is contended that the veteran's right atrophied testicle occurred as a result of an inservice herniorrhaphy he underwent in 1954 for the repair of a right inguinal hernia. The service medical records for the veteran's period of active service are not available with the exception of a copy of a report of a separation examination dated in July 1956. This report indicates that the veteran's genitourinary system, as well as his abdomen and viscera were normal. The report does indicate that the veteran had a well healed right inguinal scar and that in 1954 he had undergone a right inguinal hernioplasty. There was no notation of any right testicular atrophy recorded. Also of record is the report of an enlistment examination, for purposes of entry into the National Guard, dated in January 1975. This too indicates that the veteran's genitourinary system was normal. Under that portion of the report form set aside for notes to explain any significant or interval history it was reported that there was no significant or interval history. No right testicular atrophy was noted. The veteran underwent a VA examination in October 1990. This diagnosed the veteran as having right testicular atrophy, the etiology of which was not delineated. It reported that no herniae were present. Under the circumstances of this case, a medical opinion is needed to determine if there is a relationship between the testicular disorder and the service-connected hernia. In view of the fact the service medical records were not available and presumed destroyed in fire, the Board attempted to assist the veteran in obtaining such an opinion. Accordingly, the Board remanded the case in July 1993 to search for additional medical records, and also to afford the veteran an additional VA examination by an appropriate specialist to see if the etiology of the right testicular atrophy could be developed. 38 U.S.C.A. § 5107(a) (West 1991); Moore v. Derwinski, 1 Vet.App. 401, 406 (1991). The crux of this appeal is the veteran's failure to cooperate in the development of his appeal. Pursuant to the July 1993 remand of the Board, the RO sent a letter to the veteran dated August 18, 1993 requesting any service medical records he might have had in his possession and a list of all medical personnel and facilities from which he received any treatment since his separation from military service. The record reflects that the veteran did not respond to this letter from the RO. Additionally, the record reflects that an examination was scheduled for the veteran on October 8, 1993. On October 7, 1993 the veteran called VA and canceled the examination. He indicated at that time that he did not wish to pursue his claim. A report of contact dated May 26, 1994 revealed that RO personnel called him and told him of the necessity of scheduling another examination. He indicated that he was working five to seven days a week and it would be difficult if not impossible for him to get time off. He said that he would send a letter giving any additional information and indicate whether he would report for an examination. In June 1994 a letter was received from him in which he wrote that he didn't dare ask for time to report for an examination. This particular letter did not include any response to the information requested by VA in August 1993. The October 1990 VA examination report indicates that the veteran works as a security officer for a security service and may be self-employed as a carpenter and farmer. Because the record contains no information as to the etiology of the veteran's atrophy of the right testicle, it is necessary that he be examined and a medical opinion be obtained as to whether there is any relationship between the current findings and the surgery performed in service. The request for information from VA was to insure that any extant medical records relating to treatment or observation for atrophy of the right testicle could be obtained to assist the examiner in the formulation of the medical opinion. Under VA regulations the veteran has some obligation to cooperate in the development of his own claim. Failure to respond within one year to requests from VA for information can result in the claim being considered abandoned. 38 C.F.R. § 3.158 (1994). Importantly, failure to report for examination without good cause must result in denial of any claim for increase and the rating of an original compensation claim on the record. 38 C.F.R. § 3.655(b) (1994). The veteran's statement that he could not ask for time off from work is not an example of good cause. Considering the kind of employment he has, it is not credible that, in the course of a year, he could not work out a schedule with VA to arrange for an examination without having to take time off from his security job. Certainly the comments expressed by the veteran since the remand indicate that he has little interest in this claim. It is important to point out that the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet.App. 190, 193 (1994) With respect to the issue of service connection for atrophy of the right testicle the question must be resolved on the current record. The two service medical records that are in existence, both of which are dated subsequent to the 1954 operation, do not indicate that either in July 1956, at the time of separation from active duty, or in January 1975, at the time of the veteran's enlistment into the National Guard, that the veteran had right testicular atrophy. The first clinical report of right testicular atrophy of record is the report of the VA examination accomplished in October 1990. There is nothing in this report that attributes this condition to either period of the veteran's military service, or specifically, to the residuals of a right inguinal herniorrhaphy undertaken in service. Thus, the clinical evidence of record does not link the current disorder to service. The veteran has made several statements in correspondence and in his substantive appeal that the surgery in service for the hernia was responsible for the atrophy of the right testicle. It is significant that the veteran is not a physician and that his comments with respect to any relationship of the testicular condition to the service-connected hernia or to the surgery in service are not persuasive inasmuch as he does not possess the requisite medical expertise to render such an opinion. As a threshold matter, one claiming entitlement to VA benefits must qualify as a claimant by submitting evidence of service and character of discharge. Aguilar v. Derwinski, 2 Vet.App. 21 (1991). Once qualified, the claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded in order for the RO to carry the claim to full adjudication. 38 U.S.C.A § 5107(a) (West 1991). "[T]he [VA] benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Our determination whether a claim is well grounded is a matter of law. King v. Brown, 5 Vet.App. 19, 21 (1993). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well- grounded claim under section 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak, 2 Vet.App. at 611. If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92 (1993) Consequently, the veteran's claim with respect to service connection for atrophy of the right testicle is not well grounded. The record is silent with respect to the presence of such a condition in service or for many years thereafter. The only basis upon which the veteran may build his claim is to provide a medical opinion showing a relationship between the surgery for the service-connected hernia or the hernia itself. II. The Claim for a Compensable Evaluation for Residuals of a Right Inguinal Herniorrhaphy The veteran's claim with respect to this issue is well grounded; that is, it is plausible and capable of substantiation. All relevant facts have been properly developed and no further assistance to the veteran, to include additional VA examinations, is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are based upon a comparison of clinical findings with the applicable schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Residuals of an inguinal hernia are rated based on the degree of current symptomatology present. A compensable evaluation of 10 percent requires that postoperatively the hernia be recurring, and that it be readily reducible and well supported by a truss or a belt. A nonrecurring remedial hernia or, alternatively, a small, reducible, hernia without true hernia protrusion warrants a noncompensable evaluation. 38 C.F.R. Part 4, Diagnostic Code 7338 (1994). In view of the fact that the VA examination in October 1990 did not show the presence of any hernia and only verified the presence of a surgical scar, there are no findings upon which to base a compensable rating. The only possibility for consideration of a compensable rating would be the possibility of additional findings on a subsequent examination. The veteran's failure to cooperate has been adequately discussed in Section I. Under the provisions of 38 C.F.R. § 3.655(b) his failure to report for examination requires that the claim be denied. ORDER The claim for service connection for right testicular atrophy is dismissed. An increased (compensable) evaluation for residuals of a right inguinal herniorrhaphy is denied. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.