Citation Nr: 1340450 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 05-03 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an effective date earlier than March 22, 2012, for the grant of a total disability rating based on individual unemployability due to service- connected disabilities (TDIU). 2. Entitlement to an initial rating in excess of 10 percent for the residuals of left olecranon bursitis and medial epicondylitis/ left elbow disability. 3. Entitlement to service connection for a bilateral testicle condition, including as secondary to the service-connected central disc protrusion L3-4; lumbar myositis; disc desiccation L2-3 through L5-S1; spinal stenosis, L3-4, L4-5, narrowed neutral foramina L2-4 and L4-5. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active military service from October 1989 to March 1990 and from February 2003 to October 2003, with additional periods of service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2004 and October 2006 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in San Juan, the Commonwealth of Puerto Rico, and a May 2012 rating action by the VARO located in Hartford, Connecticut. The Veteran currently resides within the jurisdiction of the Hartford VARO. In June 2011, the Board remanded this case for additional development. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge in June 2013. A copy of the transcript of that hearing is of record. The issues of entitlement to an initial rating in excess of 10 percent for a left elbow disability and entitlement to service connection for a bilateral testicle condition, including as secondary to the service-connected back disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran filed his claim of entitlement to a TDIU on July 14, 2006; entitlement to a TDIU was granted in a May 2012 rating decision, which assigned an effective date of March 22, 2012; there is no evidence of any earlier unadjudicated formal or informal claim or factually ascertainable evidence demonstrating entitlement to TDIU prior to March 22, 2012. CONCLUSIONS OF LAW 1. There is no pending, unadjudicated formal or informal claim for a TDIU. 38 U.S.C.A. §§ 501, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157 (2013). 2. The criteria for an effective date earlier than March 22, 2012, for the grant of a TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.341, 3.400, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran appealed the effective date of the grant of the TDIU rating. The Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the effective date assigned by a RO for a compensation award. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this regard, once a decision has been made awarding service connection, a disability rating, and an effective date, § 5103(a) notice has served its purpose, as the claim has already been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). Regardless, VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in August 2006. This letter advised the Veteran of what evidence was required to substantiate his claim for a TDIU, and of his and VA's respective duties for obtaining evidence. It also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, records from the Social Security Administration (SSA), and reports of VA examinations for his service-connected disabilities. The Veteran testified at a hearing before the undersigned in June 2013. The Court of Appeals for Veterans' Claims (Court) held that at a hearing on appeal, a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The hearing was held in accordance with Bryant. In the present case, the issue on appeal was clearly set forth. It is clear that all outstanding evidence has already been obtained. As noted above, the Veteran received a letter in August 2006 that substantially explained what was required to substantiate his TDIU claim and there is no indication that he does not understand what is necessary to substantiate his claim. Additionally, the record does not indicate that there is any relevant overlooked evidence that the Veteran could submit that would aid in substantiating his claim; hence, he has not been prejudiced. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. See 38 C.F.R. § 3.103 (2013). The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Earlier Effective Date for the Grant of a TDIU A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). An effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). Thus, when addressing the effective date for an award of increased compensation, a determination must be made when a claim for increased compensation was received and when a factually ascertainable increase in disability occurred. With respect to the first of these determinations, the Board notes that once a formal claim for VA benefits has been filed, a subsequent informal request for increase will be accepted as a claim. 38 C.F.R. § 3.155(c). Generally, the informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). A VA treatment note may constitute an informal claim for increase. 38 C.F.R. § 3.157. A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999) (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran contends that the effective date for the award of TDIU should be granted prior to March 22, 2012. Specifically, he maintains that the effective date should be April 1, 2005, the date when the SSA found him to be disabled. To establish entitlement to a TDIU, there must be service-connected impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; VanHoose v.Brown, 4 Vet. App. 361, 363 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the Veteran resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, 1 Vet. App. at 358. The question is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Id., (citing 38 C.F.R. §§ 4.1 , 4.15). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). All cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a), are to be referred to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular evaluation. 38 C.F.R. § 4.16(b). The Board must therefore determine whether the Veteran is unemployable due to his service-connected disabilities. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Under Secretary Benefits or by the Director of the Compensation Service. An extraschedular rating is warranted upon a finding that the Veteran is unable to secure or follow substantially gainful employment. 38 C.F.R. § 4.16(b). The Veteran filed his claim for a TDIU on July 14, 2006. There is no earlier evidence of an earlier unadjudicated formal or informal claim. The RO granted his claim in a May 2012 rating decision and assigned an effective date of March 22, 2012. This effective date was the first date the Veteran met the statutory threshold set forth in 38 C.F.R. § 4.16(a) for the grant of a TDIU. The Veteran's claims file shows that effective October 20, 2003, his combined disability evaluation was 50 percent based on a back disability (40 percent disabling), radiculopathy of the right lower extremity (10 percent disabling), a left elbow disability (10 percent disabling), and a cyst of the right epididymal head related to traumatic epidymitis (noncompensable). In a January 2012 rating action, the RO granted service connection for erectile dysfunction as secondary to the service-connected back disability. The RO assigned a noncompensable rating, effective from July 14, 2006. In addition, the RO granted 38 U.S.C.A. § 1114 (k) (1) special monthly compensation based on loss of use of creative organ, effective from July 14, 2006. Effective March 22, 2012, the Veteran's combined disability evaluation was 70 percent based on a back disability (60 percent disabling), radiculopathy of the right lower extremity (10 percent disabling), a left elbow disability (10 percent disabling), and a cyst of the right epididymal head related to traumatic epidymitis (noncompensable). Thus, in a May 2012 rating decision, the RO granted TDIU, effective March 22, 2012, on the basis that his disabilities met the schedular requirements for TDIU as he had one disability rated at 40 percent or more and sufficient additional disabilities to raise his combined disability rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to March 22, 2012, the Veteran did not have a single service-connected disability rated at 60 percent or more, or two or more disabilities with at least one disability rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the Veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. 38 C.F.R. § 4.16(b). Here, no such referral was undertaken. For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Unemployability associated with intercurrent disability may not be used as a basis for a total disability rating, on an extraschedular basis. 38 C.F.R. § 4.19. Prior to March 22, 2012, the evidence does not establish that the Veteran was unable to secure or follow a substantially gainful occupation solely as a result of service-connected disabilities. The Board recognizes that in a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran stated that he became too disabled to work in April 2005. He noted that he had worked at a funeral home from April 2001 to February 2003. According to the Veteran, he had to stop working due to his service-connected back disability. In May 2006, the Veteran underwent a VA examination. At that time, he stated that he had constant back pain due to his service-connected back disability, with decreased range of motion. In addition, prolonged walking, standing, and sitting aggravated his back pain. The Veteran noted that he was unemployed. He indicated that he had previously worked for a funeral home where he had to drive long distances to hospitals to pick up cadavers and take them to a funeral home in Puerto Rico. According to the Veteran, he was no longer able to perform that job due to increased low back pain while driving. He noted that he needed assistance to put on his shoes and socks, dress, and bathe. The diagnosis was central disc protrusion L3-4; degenerative disc disease L3-4 through L5-S1; neural foramina L2-3 through L5-S1; spinal stenosis L3-4. The evidence of record includes a decision from the SSA, dated in September 2006. In the decision, the SSA noted that the Veteran had not engaged in substantial gainful activity since April 1, 2005. Thus, the SSA determined that the Veteran was disabled from April 1, 2005, due to his back disability, diagnosed as L3-4 and L4-5 bulging discs, and disc protrusion at L5-S1, and due to his recurrent severe major depressive disorder with psychotic features. The SSA reported that the Veteran had required Emergency Room services on numerous occasions due to acute low back pain. However, the SSA stated that the Veteran's main impairment was his affective disorder, for which he had received psychiatric treatment at the Ponce Veterans Outpatient Clinic. He had required a hospitalization from June to July 2005 due to his recurrent severe major depression with psychotic features which was manifested by depressed mood, suicidal ideas, illogical thinking, isolation, irritability, poor tolerance, insomnia, apathy, anxiety, and poor impulse control, among other symptoms. The Veteran was once again hospitalized from January to February 2006 for his depressive disorder, and also in July 2006. In light of the above, the Board notes that the SSA found that the Veteran was unemployable due to both his service-connected back disability and his non-service-connected major depression with psychotic features. However, and significantly, the standard for identifying a disability for SSA purposes is not the same as that used to determine whether a TDIU rating is warranted. In addition, SSA does not distinguish between service and non-service connected disabilities for purposes of establishing entitlement to benefits; hence, VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). However, SSA records may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). In this regard, the SSA addressed the specific question now before the Board, i.e., the earliest date at which the Veteran was too disabled to be gainfully employed. Thus, the Board finds the SSA determination provides some probative evidence against the Veteran's claim because it lists his non-service-connected major depression with psychotic features among the conditions which rendered him disabled. In fact, the SSA reported that due to numerous hospitalizations, the Veteran's main impairment was his non-service-connected major depression. Therefore, while the Veteran's service-connected back disability may have contributed to his inability to follow or obtain substantially gainful employment prior to March 22, 2012, there is no medical evidence of record to show that the Veteran's service-connected disabilities, specifically his service-connected back disability, alone prevented him from following or obtaining substantially gainful employment prior to March 22, 2012. [Emphasis added.] The Veteran is competent to discuss the impacts of his service-connected and non-service-connected disabilities. Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that he believes his service-connected disabilities, specifically his service-connected back disability, rendered him unemployable prior to March 22, 2012, his statements are also credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, his statements are less probative than the medical evidence showing that his non-service-connected major depression with psychotic features contributed significantly to his inability to work. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his service-connected disabilities alone prevent him from following or securing substantially gainful employment, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board finds that the preponderance of the evidence shows that prior to March 22, 2012, the Veteran was not unable to secure or maintain substantially gainful employment due to his service-connected disabilities alone. The record is clear that the Veteran's non-service-connected major depression with psychotic features contributed to his unemployability. Since the preponderance of the evidence is against the claim, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim for an effective date earlier than March 22, 2012 for the grant of a TDIU must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER An effective date earlier than March 22, 2012, for the award of a TDIU is denied REMAND In regard to the Veteran's claim for a higher initial rating for his service-connected left elbow disability, in the June 2013 Travel Board hearing, the Veteran stated that his left elbow disability had become progressively worse since his last VA examination. Thus, in light of the foregoing, the Board finds that a new, more contemporaneous examination is needed prior to a final adjudication of the Veteran's current claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). With respect to the Veteran's claim for service connection for a bilateral testicle condition, including as secondary to the service-connected back disability, the Board notes that service treatment records show that in March 2003, the Veteran had a testicular ultrasound taken due to pain in his testicles. The ultrasound was reported to show the following: (1) no finding to suggest torsion, (2) no intratesticular mass, (3) small right epididymal head cyst, (4) small right hydrocele, and (5) small left varicocele. In May 2004, the Veteran filed his initial claim of entitlement to service connection for a testicle disorder. In July 2004, he underwent a VA examination. The examiner stated that during service, the Veteran fell down and developed swelling in the right intrascrotal sac with pain and redness. The Veteran also maintained that he developed hemangiomas which bled. Upon physical examination, the Veteran had tiny blood vessels, superficial, in both scrotal skin which were hemangiomas. There was also a cyst in the right epididymal head. Following the physical examination, the examiner diagnosed the Veteran with the following: (1) trauma to the right intrascrotal sac in April 2003, and the diagnosis was traumatic epididymitis, (2) cyst of the right epididymal head which was related to number one, (3) small multiple hemangiomas in the skin of the scrotal sac, both sides; not related, (4) erectile dysfunction most likely than not secondary to service-connected discogenic disease, (5) bilateral hydroceles; not related, and (6) bilateral varicoceles; not related. In an August 2004 rating action, the RO granted service connection for a cyst of the right epididymal head which was related to traumatic epidymitis. In July 2006, the Veteran filed another claim for service connection for a bilateral testicle condition. At that time, he stated that he had constant severe pain in his testicles. However, as noted above, the Veteran is already service-connected for a testicle disorder, diagnosed as a cyst of the right epididymal head which was related to traumatic epidymitis. In addition, the Veteran's service-connected testicle disorder includes testicular pain. Nevertheless, as explained further below, it appears that the Veteran is seeking service connection for a testicle disorder that is separate from his already service-connected testicle disability. In June 2011, the Board remanded this case. The Board stated that according to the Veteran, he had a bilateral testicle condition that was secondary to his service-connected back disability. In this regard, the evidence of record, including a June 2009 VA examination report, showed that the Veteran had testicular impairment. [At the time of the June 2009 VA examination, the examiner stated that the Veteran's testicles were one-half the size of normal size testicles.] Thus, the Board directed the RO to afford the Veteran a VA examination in order to determine the nature and etiology of any bilateral testicle condition. If a bilateral testicle condition was diagnosed, the examiner had to address whether it was at least as likely as not that a service-connected disability caused or aggravated the testicle condition. If the testicle condition was not caused or aggravated by any service-connected disability, then the examiner had to state whether it was at least as likely as not that the testicle condition initially manifested during service or could otherwise be shown to be related to service. Pursuant to the remand, the Veteran underwent a VA examination in March 2012. The Veteran stated that he had swelling and abnormality of the veins of the scrotum The physical examination showed that there were several (10) tiny areas of superficial veins, none greater than 5 mm in size, distributed over the scrotum. There were no palpable abnormalities of the scrotal contents. In regard to a diagnosis, the examiner stated that examination of the genitalia and scrotum revealed only some miniscule venous malformations, sometimes designated Fordyce spots. According to the examiner, it was not known whether those were noted before, during, or after the Veteran's active duty, but it did not matter. The examiner reported that those malformations were benign congenital lesions which were not clinically significant. Upon a review of the March 2012 VA examination report, the Board notes that the examiner did not address the pertinent question of whether the Veteran's venous malformations/ Fordyce spots were caused or aggravated by his service-connected back disability. Thus, it is the Board's determination that the RO has not complied with the instructions from the June 2011 remand. The Board observes that it is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board and the RO with remand directives is neither optional nor discretionary. Where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, an addendum opinion must be obtained. Id. The Board recognizes that the examiner from the March 2012 VA examination stated that the Veteran's venous malformations/ Fordyce spots of the scrotum were congenital lesions. The VA General Counsel has indicated that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. See VAOPGCPREC 82-90 (1990). As explained further below, the examiner needs to identify whether the Veteran's venous malformations/Fordyce spots of the scrotum are a defect or a disease. Accordingly, the case is REMANDED for the following action: 1. The RO must return the claims file to the examiner who conducted the March 2012 VA examination that was pertinent to the Veteran's claim for service connection for a bilateral testicle condition, including as secondary to the service-connected back disability, or another VA physician if the aforementioned examiner is no longer available, and request that the examiner provide an addendum opinion to the March 2012 VA examination report. Specifically, the examiner must provide an opinion on whether it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed venous malformations/ Fordyce spots of the scrotum were caused or aggravated by his service- connected back disability? If the Veteran's venous malformations/ Fordyce spots of the scrotum were aggravated by his service-connected back disability, to the extent that is possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the nonservice-connected venous malformations/ Fordyce spots of the scrotum (e.g., slight, moderate) before the onset of aggravation. In addition, to the extent that venous malformations/ Fordyce spots of the scrotum are congenital lesions, the VA General Counsel has indicated that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Congenital diseases may be recognized as service-connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or development defect, on the other hand, under 38 C.F.R. § 3.303(c) (2013), is not able to be service-connected in its own right, although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. See VAOPGCPREC 82-90 (1990). Additionally, a disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs, and whose etiology, pathology, and prognosis may be known or unknown, which is capable of improving or deteriorating. In turn, a defect is definable as a structural or inherent abnormality or condition, which is more or less stationary in nature, and not considered capable of improving or deteriorating. Id. Thus, in regard to the Veteran's venous malformations/ Fordyce spots of the scrotum, the examiner MUST state whether such is a defect or a disease, as defined by VAOPGCPREC 82- 90 (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease, while a congenital abnormality that is more or less stationary in nature and not considered capable of improving or deteriorating is considered a defect)? If the examiner finds that the Veteran's venous malformations/ Fordyce spots of the scrotum are a disease, then is it at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's venous malformations/ Fordyce spots of the scrotum were aggravated by the Veteran's service-connected back disability? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim The examiner is also informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A rationale must be provided for any opinion or conclusion expressed. If the examiner finds that another examination is required to address the aforementioned questions, such an examination should be scheduled. 2. The RO must also make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA orthopedic examination to ascertain the current severity of his service-connected left elbow disability. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished, to specifically include x- rays. In regard to the Veteran's service- connected left elbow disability, the examiner must conduct complete range of motion studies and describe all current left elbow symptomatology. SPECIFICALLY, the ranges of left elbow flexion and extension should be reported in degrees. The examiner should also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner should express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare- ups, or pain. The examiner should report if there is ankylosis of the left elbow and, if so, whether it is favorable or unfavorable and the angle at which the elbow is held. The examiner should also report whether there is any flail joint of the left elbow. Moreover, the examiner must describe the impact of the Veteran's service-connected left elbow disability on his daily activities. A complete rationale for all opinions must be provided. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issues on appeal. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs