Citation Nr: 19147643 Decision Date: 06/18/19 Archive Date: 06/18/19 DOCKET NO. 15-45 502 DATE: June 18, 2019 REMANDED Entitlement to service connection for right-side testicular disability, to include as secondary to service-connected appendectomy residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1955 to May 1957. The matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board remanded the issue on appeal for additional development in March 2017. While the Board regrets the delay in adjudicating the Veteran’s claim for his right-side testicular disability, the issue must be remanded again. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). On November 28, 2018, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issue of service connection for a right-side testicular disability to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court’s remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated February 6, 2019 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative provided no further evidence pertinent to this appeal within the 90-day period. See Clark v. O’Rourke, 30 Vet. App. 92 (2018). The substance of the Court’s JMR will be discussed further in the remand section below. Entitlement to service connection for right-side testicular disability, to include as secondary to service-connected appendectomy residuals, is remanded. The Veteran is claiming entitlement to service connection for a right testicle disability, to include as secondary from a service-connected appendectomy and associated scars. The Veteran asserted on his November 2015 VA Form 9 that his right testicle disability is a result of his April 1957 burst appendix and subsequent appendectomy while in service, that “it is [the Veteran’s] understanding that the poison affected my right testicle.” The Court, in its Joint Motion for Remand, determined that VA failed to provide an adequate medical examination and opinion regarding his claim for service connection of a right-side testicle disability. No. 18-2335, 2018 U.S. App. Vet. Claims (Nov. 28, 2018) (unpublished). The Veteran has received two VA examinations of the male reproductive system, in May 2017 and August 2017. The May 2017 VA examiner noted the Veteran does not have nor has he ever had a diagnosis with any condition of the male reproductive system. However, despite the lack of a current diagnosis, this examiner provided an opinion on service connection, stating the claimed condition was at least as likely as not (50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was the Veteran had an appendectomy in service, and since that time the Veteran had noted radicular pain to the right groin region which could be essentially due to adhesions secondary to surgical residuals for the in-service appendectomy and is at least as likely as not (greater than 50 percent probability) caused by the claimed in-service illness. The Veteran received another VA examination for the male reproductive system in August 2017. This examiner also noted that the Veteran was not now, nor had he ever been, diagnosed with any condition of the male reproductive system. The August 2017 examiner provided a negative opinion on direct service connection, noting that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The August 2017 examiner also provided a negative opinion on secondary service connection, noting that the Veteran’s claimed disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected disability. Her rationale was that no diagnosis was made of a current disability, and the finding from the May 2017 examination that one of the testicles was half the size of normal limits and softer than normal was not clinically significant on its own. The examiner noted the Veteran’s statement that there was testicular pain in the winter but there was no objective basis to diagnose a testicular disability at this time. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that 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). The Court took notice of the May 2017 examiner and his diagnosis of adhesions related to the Veteran’s appendectomy surgery, and that the examiner related the Veteran’s right-side testicular pain to that surgery. Referencing that testicular pain, the Court then referenced the case from the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). That case, like this one, involved a Veteran’s claim for service connection for disabilities, which was denied because the VA examiner found no current disability. The Federal Circuit found that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Here, there is reference in the claims file to the appendectomy during the Veteran’s active service, but no diagnosis of a right-side testicular disability during the current appeal period. The Court also pointed out that the August 2017 VA examiner did not address whether the adhesions due to the appendectomy surgery, discussed by the Mary 2017 examiner, were the possible cause of the Veteran’s right-side testicular pain. As such, the Court considered that the May and August 2017 VA examinations were inadequate because they did not meet the Board’s March 2017 remand directives, and thus further remand is necessary to obtain another VA examination to determine the nature and etiology of the Veteran’s right-side testicular condition, to include whether it was caused or aggravated by his service-connected appendectomy residuals. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon remand, then, VA should provide an examination and opinion for the Veteran’s right-side testicular disability, to include the possibility of secondary service connection due to the service-connected appendectomy residuals. See 38 C.F.R. §§ 3.303, 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The matter is REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for a VA examination by a medical practitioner of sufficient expertise to determine the nature and etiology of the Veteran’s right-side testicular disability, to include as secondary to service-connected appendectomy residuals. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: a) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s right-side testicular disability had its onset in service or is otherwise related to any in-service disease, event, or injury? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the right-side testicular disability was caused by any of the Veteran’s service-connected disabilities, to include appendectomy residuals? c) If the service-connected disabilities did not cause the right-side testicular disability, is it at least as likely as not (a fifty percent probability or greater) that the right-side testicular disability was aggravated (an increase in severity) by the service-connected disabilities? d) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the right-side testicular disability by the service-connected disability. The examiner is to also carefully consider the Veteran’s statements of pain and other symptoms in light of the precedential finding of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone can serve as a functional impairment and therefore qualify as a disability. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.