Citation Nr: 1216635 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 09-07 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a compensable evaluation for chronic orchialgia, status post varicocelectomy. ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1994 to April 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, on behalf of the RO in Roanoke, Virginia. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to service connection for a scar status post varicocelectomy has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA has not satisfied its duty to assist under 38 U.S.C. § 7104(a) (West 2002) (explaining that decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation). VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the Veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2011), an examination will be requested whenever VA determines, as in this case, that there is a need to verify the current severity of a disability. See 38 C.F.R. § 3.159 (2011). In an October 2008 notice of disagreement and a February 2009 VA Form 9, Appeal to the Board, the Veteran indicated that he was prescribed a prescription painkiller, Tramadol, to alleviate groin pain associated with his orchialgia disability. He reported that Tramadol was not prescribed for his service-connected left shoulder arthritis. He indicated that he continuously used Tramadol for six years for his groin discomfort, and he contended that the use of the drug constituted "long term drug therapy" as contemplated by the 10 percent evaluation under the applicable rating criteria. See 38 C.F.R. § 4.115b, Diagnostic Code 7525; 38 C.F.R. § 4.115a (2011). The last VA-sponsored QTC examination was conducted in May 2008, nearly four years ago. Additionally, no post-service treatment records dated after April 2005 have been associated with the record. Thus, the current status of his service-connected orchialgia disability is unknown. The RO/AMC must afford the Veteran an updated medical examination. See 38 C.F.R. § 3.327(a) (2010); see also Caffrey v. Brown, 6 Vet.App. 377, 381 (1994) (holding that in a claim for increased rating, the Board erred in relying on a 23-month-old examination where the appellant submitted evidence to indicate there has been a material change in his disability since that examination). VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO must ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record - to specifically include, but not limited to, any VA treatment records dated after April 2005. * The RO must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. In particular, the RO must ensure that it has obtained all outstanding VA treatment records. * If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. * Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record. 2. After the above development has been conducted, the RO/AMC will afford the Veteran a VA genitourinary examination. The following considerations will govern the examination: * The examiner will be advised the purpose of the examination is to ascertain the severity of the service-connected orchialgia. The question of the source or etiology of the disorder is only relevant to the extent that it may provide information as to the severity of the disorder. * The examiner must review the evidence of record with attention to the service and any VA treatment records dated from January 2007 (one year prior to the Veteran's claim for an increased evaluation) and provide the following opinions: 1. If possible, please clarify whether the Veteran was prescribed Tramadol to alleviate his groin discomfort associated with his service-connected orchialgia versus as a painkiller for his joint pain associated with his orthopedic disabilities. 2. Does the Veteran's use of the prescription painkiller Tramadol constitute "long term drug therapy"? 3. Does the Veteran's orchialgia require long-term drug therapy, one to two hospitalizations per year, and/or require intermittent intensive management? 4. Does the Veteran's orchialgia manifest in recurrent, symptomatic urinary tract infection requiring drainage or frequent hospitalization (greater than two times per year), and/or require continuous intensive management? 5. Does the Veteran's orchialgia manifest in poor renal function? * THE EXAMINER MUST FULLY EXPLAIN THE MEDICAL AND FACTUAL BASES FOR ANY OPINION. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. 3. The RO/AMC must then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran must be provided a supplemental statement of the case (SSOC) that readjudicates his claim. The SSOC must set forth that the additional evidence has been considered and identify the relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).