TESTES REMOVAL OF

DEBORAH W. SINGLETON · 2020 · Case ID: 20081891

DENIED

Summary

The veteran, who served in the U.S. Army from November 1965 to August 1967, appeals the denial of service connection for the removal of his left testicle and its residuals, including erectile dysfunction. The veteran contended that his left testicle was removed during an in-service hernia repair surgery without prior discussion, and that he experienced immediate onset of erectile dysfunction (ED) post-surgery. Service treatment records indicated the veteran had a congenital defect of the left testicle, which was noted as undescended and non-tender prior to surgery. In April 1966, he underwent a hernia repair and orchiectomy (removal of the left testicle) due to an atrophic, non-functioning testicle. A VA examiner in October 2020 opined that the undescended testicle was a congenital defect, not caused or aggravated by service, and that the subsequent surgery was standard care for an atrophic testicle. The examiner found no nexus between the surgery and ED, noting the first mention of ED in records was in 2008, contradicting the veteran's claim of immediate onset. The Board found clear and unmistakable evidence of a pre-existing congenital defect, which rebutted the presumption of soundness. While acknowledging the surgery, the Board found it had an ameliorating effect and did not establish aggravation. The Board also found the veteran's claim of in-service ED onset not credible, as it was not documented in service records and contradicted by the VA examiner's opinion. The Board concluded the evidence weighed against service connection for the removal of the left testicle and its residuals, including erectile dysfunction, and denied the claim.

Rationale

Pre-existing congenital defect of left testicle; Surgery had ameliorating effect, not aggravation; No nexus between surgery and erectile dysfunction; Erectile dysfunction first diagnosed years after service

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-15 146

Full Decision Text

Citation Nr: 20081891
Decision Date: 12/31/20 Archive Date: 12/31/20

DOCKET NO. 17-15 146
DATE: December 31, 2020

ORDER

Entitlement to service connection for the removal of the left testicle and its residuals, to include erectile dysfunction, is denied.

FINDINGS OF FACT

1. The Veteran entered military service with a congenital defect of the left testicle, an undescended left testicle.

2. In April 1966, the Veteran underwent a hernia repair and orchiectomy during military service.

3. The April 1966 orchiectomy had an effect of ameliorating the Veteran’s undescended, atrophic, and nonfunctioning left testicle.

4. A current disability, including erectile dysfunction, did not result from a pre-existing, congenital left testicle defect, which was subject to a superimposed injury during service, including the surgery performed in April 1966.

CONCLUSION OF LAW

The criteria for establishing service connection for the removal of the left testicle and its residuals, including erectile dysfunction, are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306; VAOPGCPREC 82-90 (July 18, 1990).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran honorably served on active duty in the United States Army from November 1965 to August 1967.

This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran filed a Notice of Disagreement (NOD) in December 2015. In January 2017, the AOJ issued a Statement of the Case (SOC). In March 2017, the Veteran filed a substantive appeal on a VA Form 9 and requested a hearing before the Board. In October 2019, the Veteran attended a hearing before the undersigned Veterans Law Judge (VLJ). The Board remanded this matter to the AOJ in December 2019.

Upon review of record and the Veteran’s contentions, the Board has characterized the issue as entitlement to service connection for the removal of the left testicle and its residuals, to include erectile dysfunction. See Clemons v. Shinseki, 23 Vet. App. 1. 6 (2009).

Service Connection

Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).

Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).

A veteran is presumed to be in sound condition when accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not in itself constitute a notation or a pre-existing condition. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in the disability during service, unless there is a specific finding that the increase is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004).

The Veteran contends that
. App. 238, 246 (1995). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in the disability during service, unless there is a specific finding that the increase is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004).

The Veteran contends that during service, his left testicle was removed during a procedure to repair a hernia. The Veteran also contends there was no discussion prior to his hernia surgery regarding the removal of his left testicle. The Veteran claims that he is entitled to service connection for the left testicle removal.

The service treatment records reflect that in March and April of 1966, the Veteran presented with complaints of pain in the groin area. A physical examination in March 1966 revealed an undescended, non-tender left testicle and a normal right testicle; the impression included an undescended left testicle. During a treatment session in April 1966, it was noted that the Veteran had a left inguinal hernia and a migratory testicle, which needed repair, noting that the Veteran was to be admitted in April 1966 for a left hernia repair and orchiectomy. Upon hospital admission in April 1966, the Veteran related an history of many years of pain and swelling in the left inguinal area and on occasion, a mass would appear in his left testicle. A physical examination of the left inguinal and left scrotum areas revealed an atrophic left scrotum. The Veteran underwent surgery and a left indirect inguinal hernia was found and a small atrophic left testicle, which was located intra-abdominally. A left inguinal hernioplasty (hernia repair) and left orchiectomy (removal of left testicle) were performed; the final diagnoses were of a hernia, inguinal, indirect, left, and cryptorchism, left. When the Veteran had a follow-up visit in August 1966, it is documented that the Veteran related a history of having had trouble in his testicle all his life, indicating that it would usually swell up, with the swelling subsiding spontaneously.

In October 2020, a VA examiner provided an addendum opinion. The examiner determined, based on a review of the Veteran’s the claims file, that the Veteran’s undescended left testicle is a congenital defect. The VA examiner noted that the exact cause of an undescended testicle is not known, explaining that a combination of genetics, maternal health and other environmental factors might disrupt the hormones, physical changes, and nerve activity that influence the development of the testicles. The examiner remarked that the Veteran’s medical records reflect that he had a hernia while on active duty, which ultimately required a hernia repair. During the hernia surgery, the Veteran was found to have an atrophic left testicle, and that the nonfunctioning left testicle was removed as a standard of care, as testicular cancer risk is increased in undescended testicle. The examiner’s rationale and opinion were based on the available records, as such, the examiner was unable to find any condition (erectile dysfunction (ED) or other) specifically due to the removal of an atrophic left testicle and hernia repair in 1966. The examiner considered the Veteran’s lay statement of immediate onset of ED was in 1966 after the hernia repair, but the examiner found that a showing of ED was not supported by the Veteran’s in-service treatment, to explain that the first mention of ED in the Veteran’s medical records was in 2008. The examiner determined that there was no nexus between the Veteran’s left testicle removal and ED.

Considering the medical and lay evidence, the October 2020 VA examiner determined that the Veteran’s left testicle defect was congenital in origin. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event or illness. The examiner also opined that the Veteran’s claimed condition (of the congenital left testicle defect), which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.

The Board finds that no pre-service medical records pertinent to the testes are associated with the
The examiner determined that there was no nexus between the Veteran’s left testicle removal and ED.

The Board finds that no pre-service medical records pertinent to the testes are associated with the claims file. Additionally, the service treatment records likewise do not contain the Veteran’s report of medical examination upon entrance into service. For these reasons, the Veteran is entitled to the presumption of soundness. Nonetheless, even finding the presumption of soundness attached at the time of enlistment, the evidence of record rises to the level of clearly and unmistakably establishing that the Veteran suffered from a pre-existing, congenital defect of the left testicle, as discussed by the October 2020 VA examiner. Additionally, as in this case, a congenital or developmental defect automatically rebuts the first prong of the presumption of soundness and is therefore considered to have preexisted service. 38 C.F.R. § 3.303(c), 4.9.

Having found that the Veteran had a pre-existing, congenital left testicle defect prior to entering military service by clear and unmistakable evidence, the Board notes that congenital or developmental defects are generally not service-connected because they are not diseases or injuries under VA law and regulations. 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510 (1996). However, service connection may be granted for a disability that is shown by the evidence to have resulted from a congenital or developmental defect, which was subject to a superimposed injury that occurred during, or as a result of, active service. See VAOPGCPREC 82-90 (1990), 56 Fed. Reg. 45711 (1990).

In this case, the superimposed injury is the April 1966 surgery for the hernia repair and the removal of the undescended, atrophic, and nonfunctioning left testicle. However, the evidence of record, including the October 2020 VA examiner’s opinion, does not establish that a disability resulted from the congenital left testicle defect from the superimposed 1966 surgery, by way of aggravation or otherwise. Pursuant to 38 C.F.R. § 3.306(b)(1), with respect to aggravation, the usual effects of medical and surgical treatment in service, having the “effect of ameliorating” disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1).

The Board sympathizes with the Veteran’s contention that he did not consent to the removal of his left testicle at the time of the in-service procedure. However, the April 1966 surgical removal of the Veteran’s left testicle had an ameliorating effect, and thus does not establish a basis to show aggravation. Specifically, the October 2020 VA examiner noted that during the 1966 surgery, the Veteran was found to have an atrophic left testicle, to explain that the nonfunctioning left testicle was removed as a standard of care, as testicular cancer is an increased risk in an undescended testicle. Consistently, the clinical record that detailed the Veteran’s course in the military hospital contains evidence confirming that the Veteran had no complications during the April 1966 operation or postoperatively, noting that after the wound had healed and the sutures were removed the Veteran was discharged from the hospital. See 1966 Clinical Record\Narrative Summary (showing that the Veteran was admitted on April 28,1966, with discharge on May 5, 1966). To that end, the Board notes that the October 2020 VA examiner’s conclusion that the Veteran’s preexisting, congenital left testicle defect was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness (i.e., the April 1966 surgical procedures), is more in keeping with the overall record.

Additionally, to the extent the Veteran contends that the April 1966 surgical removal of the left
after the wound had healed and the sutures were removed the Veteran was discharged from the hospital. See 1966 Clinical Record\Narrative Summary (showing that the Veteran was admitted on April 28,1966, with discharge on May 5, 1966). To that end, the Board notes that the October 2020 VA examiner’s conclusion that the Veteran’s preexisting, congenital left testicle defect was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness (i.e., the April 1966 surgical procedures), is more in keeping with the overall record.

Additionally, to the extent the Veteran contends that the April 1966 surgical removal of the left testicle was an in-service injury, which was superimposed on his pre-existing, congenital left testicle defect, and which resulted in his erectile dysfunction, this contention is not supported by the evidence. Specifically, the October 2020 VA examiner considered the Veteran’s hearing testimony that he had an immediate onset of erectile dysfunction in 1966 but found that his erectile dysfunction was not due to the in-service removal of the left testicle and hernia repair in 1966. The October 2020 VA examiner noted that erectile dysfunction was diagnosed many years after service (in 2008), consistent with his diagnosis of hypertension, to explain that hypertension is a known cause of erectile dysfunction.

Similarly, a review of the service treatment records, at the time during and after the 1966 surgical procedures, reflects that the Veteran complained of several ailments, but at no time did he complain of ED. On the June 1967 report of medical history for purposes of separation from service, the Veteran reported the hernia repair and hydrocele, but again made no mention of ED. The June 1967 report of medical examination for separation reveals that the clinical evaluation of the Veteran’s genitourinary system, which would include the organs of reproduction, was normal. Presumably, if in fact the Veteran had an immediate onset of ED during service, it is reasonable to expect that he would have sought treatment for such a condition, and the examiner would have recorded it at that time. Therefore, the Board finds that the absence of evidence documenting treatment for ED during service serves as affirmative evidence that such a condition did not, in fact, occur. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-67 (Fed. Cir. 20060; Fountain v. McDonald, 27 Vet. App. 258, 272-73 (2015).

In sum, the Veteran’s testimony of an in-service onset of ED is less credible than the other expressed reports and objective evidence in the contemporaneous records for treatment and evaluation during service, which directly contradict such lay account, by demonstrating no in-service complaint or treatment for ED. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table) (In determining whether statements by a Veteran are credible, the Board may consider internal inconsistency, facial plausibility, consistency with other evidence, and statements made during treatment). The Board finds the other medical and lay evidence contained in the service treatment records to be a more accurate, reliable, and thus credible account of what the Veteran was experiencing during service, than his account of an in-service onset of ED that he self-reported decades after his separation from service. Therefore, the Board finds the Veteran’s reported in-service onset of ED to be not credible. Buchanan v. Nicholson, 451 F.3d at 1336-67; Fountain v. McDonald, 27 Vet. App. at 272-73.

The Board concludes that, in the context of this particular case, the record evidence is against finding that the Veteran’s congenital left testicle defect was caused or aggravated by service. Nor does the record evidence support a finding that a current disability, including erectile dysfunction, results from a pre-existing, congenital left testicle defect, which was subject to a superimposed injury during service, including the surgery performed in April 1966. Although the Board acknowledges the Veteran’s statements to the contrary, the Board finds the October 2020 VA examiner’s opinion to be competent, credible, and highly probative evidence. The Veteran has not sufficiently presented competent or credible evidence to corroborate his assertions. Furthermore, the Veteran’s own statements indicate that his left testicle defect existed prior to service and always gave him a problem. Accordingly, service connection for the removal of left testicle
or aggravated by service. Nor does the record evidence support a finding that a current disability, including erectile dysfunction, results from a pre-existing, congenital left testicle defect, which was subject to a superimposed injury during service, including the surgery performed in April 1966. Although the Board acknowledges the Veteran’s statements to the contrary, the Board finds the October 2020 VA examiner’s opinion to be competent, credible, and highly probative evidence. The Veteran has not sufficiently presented competent or credible evidence to corroborate his assertions. Furthermore, the Veteran’s own statements indicate that his left testicle defect existed prior to service and always gave him a problem. Accordingly, service connection for the removal of left testicle and its residuals, including erectile dysfunction, is denied.

DEBORAH W. SINGLETON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Hellina Y. Hailu, 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.

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