Citation Nr: 1758034 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 14-29 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for post-operative residuals of hydrocelectomy with atrophy of the left testis. 2. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected post-operative residuals of hydrocelectomy with atrophy of the left testis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from June 1960 to June 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran presented testimony before a decision review officer at the RO in July 2006. A transcript of the hearing is of record. In a September 2015 decision, the Board, in pertinent part, denied the Veteran's claims for entitlement to a disability rating in excess of 10 percent for post-operative residuals of hydrocelectomy with atrophy of the left testis and entitlement to service connection ED. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2017 Memorandum Decision, the Court vacated the Board's decision with respect to both issues, and remanded the case to the Board for action consistent with the Memorandum Decision. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Post-Operative Residuals of Hydrocelectomy with Atrophy of the Left Testis In the Memorandum Decision noted above, the Court found that a remand was required for the Board to consider potentially favorable lay evidence from the Veteran regarding the severity of his post-operative residuals of hydrocelectomy or explain why the Veteran is not credible. In this regard, the Court noted that the Veteran, in his Informal Brief (submitted after the Board's decision was issued), asserts that "one testicle is missing and the other is just a blob." See November 2016 Appellant's Informal Brief. The Court found that reading his assertions liberally, the Veteran appears to be arguing that his testes are essentially atrophied, and therefore he is entitled to a higher rating under Diagnostic Code 7523. The Court also noted that the Veteran argued that he had no testes during his July 2006 DRO hearing. See July 2006 DRO hearing transcript. See Thompson v. Gober, 14 Vet. App. 187, 188 (2000) (per curiam order) (requiring the Board to provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant"). The Board also notes that the most recent VA examination in connection with the Veteran's service-connected post-operative residuals of a hydrocelectomy was held in December 2011. The Veteran's representative reported in a December 2017 statement that the Veteran notified him that the residuals of his hydrocelectomy have worsened, in that both of his testicles are impacted and atrophied. See December 2017 Appellant's Post-Remand Brief. The Veteran is entitled to a new VA examination where there is evidence, including his statements, that his condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Given the evidence of possible increased symptomatology since the Veteran's last VA examination, the Board finds that a new VA examination is warranted to ascertain the current severity of the Veteran's service-connected post-operative residuals of hydrocelectomy. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Erectile Dysfunction The Court also found that the May 2004 and February 2012 VA examinations, relied upon by the Board in the September 2015 decision, to deny the Veteran's claim for service connection for ED, are inadequate for evaluation purposes because although the examinations addressed direct causation, neither examiner addressed whether the Veteran's ED was aggravated by his service-connected post-operative residuals of hydrocelectomy. A medical opinion that focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition. See El-Amin v. Shinseki, 26 Vet. App. 136 at 140 (2013). Once the Secretary undertakes the effort to provide an examination, he must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. See 38 U.S.C. § 5103A(d)(1); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that a remand for a new VA examination and opinion is necessary to determine the etiology of the Veteran's ED. 38 U.S.C. § 5103A(d) (2012). The appellant is advised that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, afford the Veteran an appropriate VA examination to determine the current severity of his post-operative residuals of hydrocelectomy. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner should specifically determine whether one or both testis were removed. The examiner should specifically determine whether one or both testis are atrophied, and, if so, the degree of atrophy (complete or not). The examiner should also describe whether any testicular pain is attributable to residual scarring from the left hydrocelectomy surgery that the Veteran underwent in service. 3. Schedule the Veteran for an appropriate VA examination to determine the etiology of his claimed ED. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. A complete history of the Veteran's ED symptomatology should be obtained and recorded. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current ED is etiologically related, in whole or in part, to the Veteran's active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current ED was caused by the service-connected post-operative residuals of hydrocelectomy. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current ED was aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service-connected post-operative residuals of hydrocelectomy. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 5. Then readjudicate the Veteran's claims. If any benefit sought on appeal is not granted, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).