Citation Nr: 1803953 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-04 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a higher initial disability rating for a chronic left ankle strain/sprain, rated as noncompensable prior to April 21, 2015, and as 10 percent disabling thereafter. 2. Entitlement to service connection for neoplasm of the male reproductive system REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2008 to September 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2015, the RO increased the initial disability rating assigned for chronic left ankle strain/sprain to 10 percent, effective April 21, 2015. However, because the increased disability ratings assigned are not the maximum rating available throughout the period on appeal, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In a recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran's left ankle was assessed in May 2012 and April 2015 VA examinations; however, the examiners did not conduct Correia-compliant testing. Based on the foregoing insufficiencies, a remand is required in order to obtain an adequate orthopedic examination, to include a retrospective medical opinion as to the findings included in the prior examinations conducted during the appeal. With respect to his claimed male reproductive disorder, service treatment records documented the Veteran's treatment for injured testicles. For example, in April 2011, he was treated for lumps on the left testicle. The Veteran was provided a VA examination in May 2012 and he submitted a March 2013 Disability Benefits Questionnaire (DBQ) completed by a private physician. The VA examiner acknowledged that the Veteran was diagnosed with neoplasms of the male reproductive system in April 2011. However, at the time of the examination, the examiner determined that the Veteran did not have a benign or malignant neoplasm. Similarly, the diagnosis section of the March 2013 DBQ noted a history of neoplasms of the male reproductive system, but also indicated that the Veteran did not have a benign or malignant neoplasm at the time of the examination. The private physician noted that there was perhaps a small varicocele of the left scrotum. In September 2012, the Veteran stated that his in-service injuries to his testicles caused enlargement of his right testicle with deformity, atrophy of the right testicle, and diminished libido. In June 2015, the Veteran argued that the VA examiner did not conduct a full examination because his varicocele was not examined. It is not clear if the Veteran has a diagnosis related to the male reproductive system. Service treatment records noted injuries to his testicles during service. The May 2012 VA examiner and the March 2013 private physician indicated that the Veteran did not have a benign or malignant neoplasm at the time of the examinations. However, the Veteran described symptoms such as an enlarged testicle, decreased libido, and atrophy of the testicle. The Veteran also reported that his claimed varicocele was not examined. Accordingly, the Board finds that another VA examination is required to determine whether the Veteran has a diagnosis of the male reproductive system. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected left ankle disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's left ankle conducted during the course of the appeal in May 2012 and April 2015. With regard to each examination, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Furthermore, if any opinion cannot be offered without resort to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 3. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of all male reproductive disorders that have been presented during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner must identify all male reproductive disorders present during the period of the claim. Following the examination and a review of the relevant records and lay statements, the examiner should address the following: (a) The examiner should confirm or rule out a male reproductive system diagnosis. If the examiner determines that a male reproductive disorder has not been present during the period of the claim, the examiner should explain why no diagnosis is warranted. (b) If the examiner determines that any male reproductive disorder has been present for any portion of the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder originated during or is otherwise etiologically related to the Veteran's service. A complete rationale must be provided for all opinions offered, and if the examiner cannot offer an opinion without resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence/information, if any, would allow for a more definitive opinion. In doing so, the examiner must consider and discuss the Veteran's September 2012 and June 2015 statements regarding his in-service injuries and current symptoms. 4. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).