Citation Nr: 1414391 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 03-33 782 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC THE ISSUES 1. Entitlement to service connection for benign prostatic hypertrophy, claimed as secondary to service-connected epididymitis. 2. Entitlement to service connection for subclinical varicocele, claimed as secondary to service-connected epididymitis. 3. Entitlement to service connection for spermatocele, claimed as secondary to service-connected epididymitis. 4. Entitlement to service connection for male erectile disorder, claimed as secondary to service-connected epididymitis. 5. Entitlement to service connection for penile lesion, claimed as secondary to service-connected epididymitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1965. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2002 rating decision. The Veteran filed a notice of disagreement (NOD) in July 2002, and the RO issued a statement of the case (SOC) in October 2003. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in November 2003. In March 2005, the Board remanded the claim for service connection for residuals of epididymitis, to include sterility, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After completing additional development, the AMC continued to deny the claim and returned the matter to the Board. In April 2006, the Board again remanded the claim for service connection for residuals of epididymitis, to include sterility, to the RO, via the AMC, for additional development. After completing additional development, the AMC continued to deny the claim (as reflected in a December 2007 supplemental SOC (SSOC)), and returned the matter to the Board for further appellate consideration. In October 2008, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) in Washington, DC; a transcript of that hearing is of record. In a December 2008 decision, the Board denied service connection for residuals of epididymitis, to include sterility. The Veteran appealed the December 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2009, the Court granted the Secretary's unopposed motion to remand the claim to the Board for further proceedings consistent with the motion. In July 2009, the Board again remanded the claim for service connection to the RO, via the AMC, for additional development. In a February 2010 rating decision, the Remand and Rating Development Team at the Huntington, West Virginia RO granted service connection for "epididymitis" and assigned an initial 0 percent rating, effective April 2, 2001. However, the RO continued to deny service connection for "residuals of epididymitis to include sterility" (as reflected in a February 2010 SSOC), and returned this matter to the Board for further appellate consideration. After reviewing the February 2010 decision in which the RO granted service connection for "epididymitis" and the February 2010 SSOC in which the RO continued the denial of service connection for "residuals of epididymitis", the Veteran expressed confusion regarding the nature of his claim, as reflected in correspondence dated in March 2010. In the Secretary's motion, it was noted that the Veteran had been diagnosed with epididymitis, benign prostatic hypertrophy, subclinical varicocele, spermatocele, male erectile disorder, and a penile lesion during the pendency of this claim. See Appellee's Motion for Remand, pp. 2-3. The Secretary's motion specifically asked for consideration of whether any of the listed diagnoses were related to the Veteran's in-service episode of epididymitis. See Appellee's Motion for Remand, p. 4. In light of the February 2010 award of service connection for epididymitis itself, but not for its residuals, the Veteran's concerns, and the Secretary's motion, in May 2010, the Board characterized the appeal as encompassing six separate matters set forth on the title page. In May 2010, the Board remanded the claims for service connection for sterility, benign prostatic hypertrophy, subclinical varicocele, spermatocele, male erectile disorder, and penile lesion, each claimed as secondary to service-connected epididymitis, to the RO via the AMC, for further development. After completing additional development, the AMC continued to deny the claims (as reflected in a June 2011 SSOC), and returned these matters to the Board for further appellate consideration. In his July 2011 Informal Hearing Presentation (IHP), the Veteran's representative included excerpts from three medical websites regarding information pertinent to the claims on appeal. The July 2011 IHP included a waiver of RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2013). In a rating decision dated November 2012, the RO granted service connection for sterility and assigned an initial 20 percent rating effective April 2, 2001. The RO also awarded entitlement to special monthly compensation based on loss of use of a creative organ. This terminated the appeal to this issue. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). After completing additional development, the AMC continued to deny the remaining claims (as reflected in a November 2012 SSOC), and returned these matters to the Board for further appellate consideration. In April 2013, the Board remanded the claims for service connection for benign prostatic hypertrophy, subclinical varicocele, spermatocele, male erectile disorder, and penile lesion, each claimed as secondary to service-connected epididymitis, to the RO via the AMC, for further development. After completing additional development, the AMC continued to deny the claims (as reflected in a November 2013 SSOC), and returned these matters to the Board for further appellate consideration. As a final preliminary matter, the Board again notes that, in September 2007, the RO determined that the Veteran's VA claims file had been lost. The current file is a rebuilt one. Some of the information discussed herein is derived from records assembled in an attempt to reconstruct the claims file. Additionally, the paper claims folder has been converted into electronic format in the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Notably, VBMS reflects that additional documents have been associated with the claims folder since the November 2013 SSOC. These are related to financial actions, and are not pertinent to the claims being decided on appeal. The Board's decision on the claims for service connection for benign prostatic hypertrophy, subclinical varicocele, and spermatocele is set forth below. The remaining claims for service connection for male erectile disorder and penile lesion are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim herein decided has been accomplished. 2. The weight of the competent, probative medical evidence establishes that none of the disabilities currently under consideration-benign prostatic hypertrophy, subclinical varicocele, or spermatocele-had its onset in service; is etiologically related to an event or injury in service; or is proximately due to or the result of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for benign prostatic hypertrophy, to include as secondary to service-connected epididymitis, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 2. The criteria for service connection for subclinical varicocele, to include as secondary to service-connected epididymitis, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 3. The criteria for service connection for spermatocele, to include as secondary to service-connected epididymitis, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in the claimant's possession. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. As noted above, the claims folder has been rebuilt. The record reflects that the Veteran initially filed a service connection claim for epididymitis which was later revised to include sterility. Both of these claims have been granted. The issues of service connection for benign prostatic hypertrophy, subclinical varicocele, and spermatocele were added on appeal pursuant to a December 2008 Appellee's Motion for Remand, while the epididymitis and sterility claims were still on appeal. See Appellee's Motion for Remand, pp. 2-3. In this context, the Board notes that the Veteran was first provided content compliant VCAA notice on the epididymitis claim in an April 2006 post-rating letter which informed him what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by him, what information and evidence would be obtained by VA, and the need for the Veteran to advise VA of and to submit any further evidence that is relevant to the claim. The April 2006 letter also informed the Veteran how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. Thereafter, in a September 2007 letter, the Veteran was informed that the RO was unable to locate his claims file and of the need for specific information in order to rebuild his file. In May 2010, the Board issued a remand which recharacterized the claims on appeal to include entitlement to service connection for benign prostatic hypertrophy, subclinical varicocele and spermatocele. The RO provided the Veteran a content compliant VCAA notice specific to these claims by letter dated May 14, 2010. Following the issuance of the May 2010 notice, the Veteran and his representative were afforded further VCAA notice letters in August 2011 and May 2013. A January 2011 RO letter advised the Veteran of its inability to obtain specified private medical records. See 38 C.F.R. § 3.159(e)(1). In July 2013, the RO advised the Veteran of its inability to obtain records from the Social Security Administration (SSA). Id. Furthermore, the Veteran and his spouse were afforded the opportunity to present testimony before the Board in October 2008. In connection with these further opportunities to present pertinent information and/or evidence to the matters on appeal, the RO readjudicated the claims in SSOCs dated June 2011 and November 2013. Hence, the Veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's VA medical records, and the reports of VA genitourinary examinations conducted in September 2006, December 2006, January 2007, November 2009, August 2010, April 2011, June 2011, September 2011, October 2012 and October 2013. The RO has also obtained all available private medical records pertinent to the claims. The Board is unaware of any outstanding requests to obtain any potentially available evidence and/or information pertinent to the claims being decided on appeal. Also, a copy of the October 2003 SOC is associated with the claims file. In addition, of record are various written statements provided by the Veteran, and his representative, on his behalf, are associated with the claims file. Additionally, with respect to the claims being decided on appeal, the RO has obtained adequate VA medical examinations and opinions. The Veteran has been provided multiple examinations to identify current disabilities of benign prostate hypertrophy, subclinical varicocele and spermatocele. Addendum opinions in June 2011, which address whether these conditions have been caused by, aggravated by or proximately related to service or service-connected epididymitis, were based upon review of medical literature as well as training and knowledge gained by the VA urologist in over 40 years of practice. An October 2012 VA examiner addressed the direct service incurrence theory with an explanation that benign prostate hypertrophy, subclinical varicocele and spermatocele were medically unrelated to service-connected epididymitis. The Board finds that these medical examinations and opinions satisfy VA's duty to assist in this case. The Board also finds that no further RO action prior to appellate consideration of the claims is warranted. The Board again notes that, in September 2007, the Veteran's claims file was lost, and that the current claims file is a rebuilt one. Efforts by the RO to locate the claims file were unsuccessful, and there is clear documentation of the extent of the RO's efforts to locate the file through various e-mails associated with the rebuilt claims file. The RO advised the Veteran that his original claims file had been lost, and that his file has been rebuilt. Although the Veteran's service treatment records (STRs) or copies thereof have not been associated with the rebuilt claims file and the initial rating decision as well as some of the Veteran's correspondences are also not of record, the lack of the STRs and the additional documentation in this case is not fatal to the claims. As discussed below, while the evidence of record establishes that the Veteran was treated for a genitourinary infection and epididymitis in-service, his claim is being denied because the competent, probative evidence that addresses the question of whether the Veteran has any current residuals of in-service epididymitis, to include benign prostatic hypertrophy, subclinical varicocele and spermatocele, weighs against the Veteran's claim. In addition, there is no evidence that the issues on appeal have been a chronic condition in service that continued to present day. As the prior Board's prior remands demonstrate, there were no VA medical opinions previously obtained to determine the etiology of the claimed conditions on appeal. As such, the VA opinions presently associated with the claims file are the only medical opinions to address whether the Veteran's benign prostatic hypertrophy, subclinical varicocele and spermatocele are of service-connected origin. Thus, any STRs or other documents previously associated with the claims file would not serve to provide a medical nexus opinion. Under these circumstances, another remand to, again, attempt to associate with the claims file missing records would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is thus not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 56 (1991). Additionally, the Veteran and his spouse had the opportunity to supplement the evidentiary record with their testimony before the undersigned in October 2008. The provisions of 38 C.F.R. § 3.103(c)(2) require that the individual who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the time of the October 2008 hearing, the issues of entitlement to service connection for benign prostatic hypertrophy, subclinical varicocele and spermatocele had not been specifically raised. Nonetheless, these claims are closely intertwined with the epididymitis claim which was before the Board. At that hearing, the Veteran and his spouse provided general testimony regarding the nature and onset of the Veteran's genitourinary disorder and the available evidence pertinent to the claim. After reviewing this testimony in light of the evidentiary record, the Board remanded the claims in May 2010, August 2011 and April 2013 for further evidentiary development, to include providing VCAA notices, obtaining private medical records, VA medical records, SSA records and affording the Veteran medical examinations and opinions. As such, the Board finds that, any errors with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant, have been cured. Finally, the Board further notes that this case was remanded in March 2005, April 2006, July 2009, May 2010 and April 2013 for the RO to assist the Veteran with development of his claims, to include the solicitation of additional evidence and for him to undergo VA examination. In response, the RO has obtained provided the Veteran further VCAA notice, obtained all relevant private, VA and SSA records, and obtained VA examinations which are adequate to decide the claims addressed in this decision. As indicated above, RO letters dated January 2011 and July 2013 advised the Veteran of records it was unable to obtain on his behalf. Overall, all requested development relating to the service connection claims being decided on appeal has been accomplished on remand; to that extent there has been compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). As will be discussed in the REMAND section below, further development is still required in conjunction with the Veteran's other two claims involving male erectile dysfunction and penile lesions. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran seeks to establish his entitlement to service connection for benign prostatic hypertrophy, subclinical varicocele and spermatocele. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection for any disability on a direct basis, the record must contain competent evidence of (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") The disease entities of benign prostatic hypertrophy, subclinical varicocele and spermatocele are not among the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Information contained in the claims file indicates that the Veteran had previously applied for VA benefits. However, his original claims file, along with his STRs, was lost in September 2007. As attempts to locate his claims file were unsuccessful, the RO rebuilt his claims file; however, there are no medical records from his period of active service currently associated with his claims file. In cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). See also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Court declined to apply an "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). The October 2003 SOC and the Board's remands in March 2005 and April 2006 indicate that STRs showed that the Veteran was treated for a genitourinary infection and that he was hospitalized for epididymitis. The October 2003 SOC specifically noted three STRs from July and August 1963 that show treatment for gram negative extracellular diplocci, less than 10 UPC, with one of those STRs also noting from August 1963 showing that Erythromycin was prescribed. The Veteran's February 1965 separation examination did not reveal chronic epididymitis or other chronic residual disability of the genitourinary system. Clinical evaluation of the genitourinary system was reported to be within normal limits. In addition, on contemporaneous self-report of medical history, the Veteran reported no history of frequent or painful urination. A January 2003 and a December 2003 VA urology record each reflect that the Veteran reported that he never fathered a child and he developed a sexually transmitted disease (gonorrhea) in service. He furthered that he was denied treatment until he developed what the VA physician stated sounded like an acute epididymitis. On physical examination, external genitalia revealed no lesions, no masses, and epididymitis was normal bilaterally. The examiner noted that a May 2002 scrotal sonogram report that revealed an impression of bilateral varicocele, spermatocele, and mild hydrocele. The current assessment was subclinical varicocele and spermatocele. A June 2004 VA clinic record reflects that the Veteran was prescribed a trial of Viagra due to complaint of erectile dysfunction. In 2006, his complaints of urinary frequency resulted in a diagnosis of benign prostatic hypertrophy. An October 2006 treatment record noted the Veteran's report of nocturia and splitting of stream "for years." Thus, the Veteran has established the presence of current disabilities of benign prostatic hypertrophy, subclinical varicocele and spermatocele. As indicated above, the Veteran also received in service treatment for gonorrhea and epididymitis. Thus, the Veteran has satisfied two required components of a service connection claim. The dispositive issue on appeal concerns whether the Veteran's benign prostatic hypertrophy, subclinical varicocele and spermatocele had their onset in service, are causally related to an event in service or are proximately due to service-connected disability. The Veteran has generally reported the onset of recurrent episodes of hemiscrotal discomfort and swelling since service. See VA examination reports dated April 2005 and September 2006. He has reported progressive symptoms of obstructed voiding and urinary frequency since 1989. See VA examination reports dated November 2009 and September 2011. He is unaware of the onset of his spermatocele and varicocele. Id. Notably, neither the Veteran nor his spouse has provided a significantly different history of onset in the many statements of record. Thus, lay and medical evidence establishes the onset of benign hypertrophic hypertrophy many years after service, and fails to establish the onset of spermatocele or varicocele in service. Notably, the Veteran has been service-connected for epididymitis, and sterility as secondary to epididymitis. He has generally alleged that his benign prostatic hypertrophy, subclinical varicocele and spermatocele are proximately due to service-connected epididymitis. For reference purposes, the epididymis is the elongated cordlike structure along the posterior border of the testis, whose elongated coiled duct provides for storage, transit and maturation of spermatozoa and is continuous with the ductus deferens. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 566 28th Ed. (1994). Epididymitis is an inflammation of the epididymis. Id. Varicocele is a varicose condition of the veins of the pampiniform plexus, forming a swelling that feels like a "bag of worms," appearing bluish through the skin of the scrotum, and accompanied by pulling, dragging, or dull pain in the scrotum. Id. At 1795. A spermatocele is a cystic distention of the epididymis or the rete testis containing spermatozoa. Id. at 1553. The record contains multiple medical opinions against these claims, and only the Veteran's opinion with reference to medical treatise articles in support of the claims. A November 2009 VA examiner stated that benign prostatic hyperplasia, varicocele and spermatocele were "clearly not related to his previous military experience" and, in an addendum in December 2009, stated that the more recent onset of benign prostatic hyperplasia, varicocele and spermatocele were not caused by the episode of epididymitis. This opinion is afforded little probative value due to the lack of a rationale for the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). An August 2010 VA examiner stated that benign prostatic hyperplasia, varicocele and spermatocele were not caused by epididymitis. This opinion is also afforded little probative value due to the lack of a rationale for the conclusion reached. In two separate addendums dated in June 2011, the August 2010 VA examiner opined that it was less likely than not that benign prostatic hyperplasia, varicocele and spermatocele were caused by, aggravated by, or proximately related to service-connected epididymitis. This opinion was based upon knowledge of medical literature which did not reveal such a relationship as well as the examiner's knowledge of, and clinical experience in, the practice of urology for more than 40 years. This opinion has significant probative value concerning the etiological relationship between benign prostatic hyperplasia, varicocele and spermatocele and the service-connected epididymitis. However, the examiner's opinion holds no probative value concerning the relationship between these disease entities and active service as this issue was not addressed. A September 2011 VA examiner found that the Veteran's benign prostatic hypertrophy, varicocele and spermatocele were not caused or aggravated by military service. It was explained that the defect in the Veteran's left spermatic vein caused the appearance of varicocele at puberty, which was deemed a congenital defect. It was further noted that benign prostatic hyperplasia developed later in life and, at the time of examination, a spermatocele was not found. This opinion has significant probative value concerning the etiological relationship between benign prostatic hyperplasia and varicocele and active military service. However, it holds no probative value regarding the spermatocele claim as this issue was not discussed. Finally, an October 2012 VA examiner provided opinion that the Veteran's benign prostatic hypertrophy, varicocele and spermatocele were less likely than not incurred in or caused by an in-service event or injury. It was explained that these were entirely unrelated phenomena, and that there was no medical rationale for such claims. On the other hand, other than the Veteran's theories discussed above, the Veteran has referenced medical treatise articles which identify potential epididymitis complications as scrotal abscess, testicular atrophy, reduced fertility, cutaneous scrotal fistula, testicular infarction, pyocele, and orchalgia. Based on the evidence above, the Board finds that the persuasive medical evidence in this case establishes that the Veteran's benign prostatic hypertrophy, subclinical varicocele and spermatocele did not have their onset in service, and are not causally related to an event in service or proximately due to service-connected disability. With respect to direct service connection, the opinion of the October 2012 VA examiner provides significant probative evidence against this theory as the examiner found that the Veteran's benign prostatic hypertrophy, varicocele and spermatocele were less likely than not incurred in or caused by an in-service event or injury. This opinion is supported by a rationale that these were entirely unrelated phenomena, and that there was no medical rationale for such claims. With respect to a secondary theory, the June 2011 addendum opinions provide significant probative evidence against this theory as this examiner found that it was less likely than not that benign prostatic hyperplasia, varicocele and spermatocele were caused by, aggravated by, or proximately related to service-connected epididymitis. This opinion was based upon the examiner's knowledge of medical literature and his 40+ years of clinical experience in the practice of urology. Notably, as discussed above, the record contains multiple medical opinions against an etiologic relationship between the Veteran's benign prostatic hyperplasia, varicocele and spermatocele and his active service or, alternatively, his service-connected epididymitis. Many of these opinions lack a rationale which reduces their probative value. However, the lack of reasoning does not equate to a total lack of probative value. The November 2009 VA examiner's statement that benign prostatic hyperplasia, varicocele and spermatocele were "clearly not related to his previous military experience" is an unequivocal denial of a causal relationship which, when viewed in the context of all the medical opinions of record, demonstrates a consistent viewpoint with all of the medical opinions. The Board also notes that the September 2011 VA examiner found that the Veteran's varicocele was a congenital defect. Notably, congenital or development defects may not be service-connected as they are not deemed "diseases" or "injuries" for VA compensation purposes. 38 C.F.R. § 3.303(c). Compensation is payable, however, for disability due to injury superimposed upon a congenital defect. VAOPGCPREC 82-90 (July 18, 1990). Here, the October 2012 VA examiner stated that the Veteran's varicocele was a phenomena unrelated to service with no medical rationale attributing this defect to service. Thus, service connection for varicocele on the basis of a superimposed injury resulting in disability is not warranted. On the other hand, the Veteran has provided his own self-diagnosis and opinion regarding the nature and etiology of his benign prostatic hypertrophy, varicocele and spermatocele. The Veteran is clearly competent to describe the symptoms of urinary frequency, scrotal pain, and observable physical abnormalities. However, regarding actual diagnosis and etiology of these symptoms, the Board places significantly greater probative weight to the opinions of the VA examiners as they possess much greater expertise and training than the Veteran in speaking to the nature and etiology of his genitourinary disorders. Similarly, the Board finds that the opinions of the VA examiners hold significantly greater probative weight than the medical treatise information as the VA examiners have applied these medical principles to the specific facts of this case. The Board has also considered whether service connection is warranted for benign prostatic hypertrophy, varicocele and spermatocele on any other basis. However, as none of these disorders is included in the list of enumerated chronic diseases under 38 C.F.R. § 3.309(a), none of the claims may be established on a presumptive basis or on the basis of continuity of symptoms. Walker at 1338-39. Notably, the Veteran has not specifically alleged the onset of benign prostatic hypertrophy, varicocele or spermatocele in service. Based on the foregoing, the Board finds that service connection is not warranted for benign prostatic hypertrophy, subclinical varicocele and spermatocele, to include on a secondary basis; hence, each claim must be denied . In reaching the decision to deny each claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against each claim, that doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for benign prostatic hypertrophy, to include as secondary to service-connected epididymitis, is denied. Service connection for varicocele to include as secondary to service-connected epididymitis, is denied. Service connection for spermatocele, to include as secondary to service-connected epididymitis, is denied. REMAND The Board is cognizant that the Veteran's appeal with regard to claims for service connection for male erectile dysfunction and penile lesion has been pending for many years and subject to multiple Board remands. Unfortunately, the Board nonetheless finds that further action on these claims is necessary, even though such will, regrettably, further delay an appellate decision on these matters. On remand, the Board finds that further clarifying opinion is needed with respect to the service connection claim for male erectile dysfunction. A VA examiner in October 2013 found that the Veteran's erectile dysfunction was likely due to "testicular failure." The examiner did not further explain the disease(s) or defect(s) which caused testicular failure. Here, the Veteran has multiple genitourinary disorders. The Board further observes that there are multiple possible causes for testicular failure. See http://www.nlm.nih.gov/medlineplus/ency/article/000395.htm. With respect to the penile lesion claim, the October 2013 VA examiner did not provide a diagnosis or etiology opinion as requested in the Board's April 2013 remand on the basis that a penile lesion was not present at the time of examination. However, a May 2013 VA dermatology consultation in the clinic setting reflects the Veteran's description of a penile rash which occurs 3-4 times per year, and lasts 3-4 days in duration. At that time, the dermatologist described erythematous, scaly and slightly eroded plague on the Veteran's glans penis as well as a fine depression at the site where the Veteran had described a prior fluid-filled bump. He was given differential diagnoses of herpes simplex, fixed drug eruption, psoriasis and lichen planus, and recommended to undergo herpes serologies and a skin biopsy. Thus, on this record, the Board must find that, for purposes of the pending claim on appeal, the Veteran has a current genital skin disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the service connection requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim). The Board is cognizant that the active and inactive phases of the Veteran's skin disorder complicate VA's ability to fully evaluate this disorder. See generally Ardison v. Brown, 6 Vet. App. 405 (1994) (due to fluctuating nature of condition, a remand was necessary where appellant was examined during inactive stage). Cf. Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding that a condition that became inflamed approximately twice a year for a few days did not require examination during flare-up). However, these examination difficulties do not obviate VA's duty to provide medical examination and opinion in this case. Accordingly, the Board finds that additional VA examination of the Veteran's claimed penile lesion is warranted. To the extent possible, the VA examiner should provide a diagnosis for the Veteran's recurrent genital skin disorder and determine whether this skin disorder is causally related to the treatment for gonorrhea in service. In the event the skin disorder is not present on examination, the examiner should rely on the documented clinical findings of record and any subsequent testing which may have been conducted in the VA dermatology clinic. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Due to the inactive and active phases of this genital skin disorder, the Veteran's cooperation is developing his claim may be vital to an accurate and final resolution of his appeal. The Veteran is hereby advised to report to the VA dermatology clinic during an active phase, and to follow through with the suggested testing such as herpes serologies and biopsies (if he hasn't done so already). He is also requested to advise the RO if any VA treatment for his genital skin disorder occurs to ensure that the medical records are associated with the claims file. Further, to ensure that all due process requirements are met, and that the record before the VA physician is complete, on remand, the RO also obtain and associate with the claims file all outstanding pertinent medical records. Regarding VA records, the claims file currently includes treatment records from the VAMC in Washington, DC, since May 30, 2013. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain from the above-noted facility all outstanding pertinent VA treatment records dated since May 30, 2013, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's notice letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the VAMC in Washington, DC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since May 30, 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the October 2013 VA examiner to provide an addendum opinion regarding the disease(s) or defect(s) which have caused the Veteran's testicular failure, stated to be responsible for the Veteran's erectile dysfunction. If the October 2013 VA examiner is unavailable, or another examination of the Veteran is deemed necessary, arrange for the Veteran to undergo VA genitourinary examination, by an appropriate physician. In such event, the contents of the entire rebuilt claims file, to include a complete copy of the REMAND, must be made available to the physician, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician is requested to provide opinion, consistent with sound medical principles, as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's erectile dysfunction was caused, or is aggravated (worsened beyond the normal progression), by service-connected epididymitis and sterility The physician is hereby advised that pertinent medical records have been misplaced or lost by VA. The examiner should conduct a thorough interview of the Veteran regarding the onset of his erectile dysfunction and accept his description of onset and treatment unless there is a medical reason to reject the history provided. All examination findings (if any), along with complete rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo genitourinary examination, by an appropriate physician, to obtain further medical information as to the nature and etiology of his claimed penile lesion. The contents of the entire rebuilt claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician is requested to 1) identify the exact diagnosis for the Veteran's claimed penile lesion (which has also been described as a rash), and 2) provide opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that this lesion/skin disorder is causally related to the treatment for gonorrhea in service? The examiner is hereby advised that pertinent medical records have been misplaced or lost by VA. The examiner should conduct a thorough interview of the Veteran regarding the onset of the penile lesion and accept his description of onset and treatment unless there is a medical reason to reject the history provided. The examiner is further advised that the history provided by the Veteran, and corroborated by VA clinic records, shows that his genital skin disorder is subject to active and inactive phases. To the best of his/her disability, the examiner should correlate any findings on examination with the lay and medical descriptions contained in VA clinic records (see, e.g., VA dermatology records dated August 2011, November 2011, March 2012 and May 2013). All examination findings, along with complete rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs