Citation Nr: 20008044 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 03-33 782 DATE: January 30, 2020 REMANDED The claim of entitlement to penile lesion, claimed as secondary to service-connected epididymitis, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, 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 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely disagreed with, and perfected an appeal as to, the RO’s denial. 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. Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). The Board notes that this case has a long procedural history that has been set forth, in detail, in prior appellate actions. Such history will be repeated here only to the extent needed to explain the state of the matter currently before the Board. In December 2015, the Board awarded service connection for erectile disorder, but denied service connection for penile lesion. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). The RO implemented the Board’s award of service connection for erectile disorder by way of a January 2016 rating decision. In May 2017, the Court issued a Memorandum Decision vacating that portion of the December 2015 decision in which the Board denied service connection for penile lesion and remanding that claim to the Board for further proceedings consistent with the Memorandum Decision. In October 2017, the Board, in turn, remanded the claim to the agency of original jurisdiction (AOJ) for further development. Unfortunately, the Board finds that further agency of original jurisdiction (AOJ) action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In a December 2015 Informal Hearing Presentation, the Veteran’s representative contended that service connection is warranted for penile lesions due to treatment for gonorrhea in service with prescribed Tamsulosin, the same medication documented in post-service VA treatment records. Although, pursuant to the October 2017 Board remand, an August 2019 opinion was obtained, that opinion does not address the Veteran’s contention that his penile lesions are caused by medications taken for his epididymitis (which was found to be caused by his in-service gonorrhea). Further with regard to aggravation of his penile lesion due to a service-connected epididymitis, the examiner opined “the claimed condition, which clearly and unmistakably existed prior to service, was “clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness” (emphasis added), “because no substantial medical literature to support that epididymitis could aggravate a penile lesion. A nexus has not been established. Therefore, it is less likely than not aggravated beyond its natural progression by the veteran’s service-connected epididymitis.” Here, the rationale provided for aggravation reiterates the same reasoning in the June 2011 VA addendum opinion that the Board found insufficient in the October 2017 remand. Notably, that the examiner utilized two different standards in addressing aggravation, and, in the opinion, the examiner incorrectly marked the box that addresses aggravation in the context of a pre-existing connection. Therefore, a remand of this matter is required to obtain further medical opinion addressing secondary service connection, which reflects application of the correct standard, and is supported by complete, clearly -stated rationale. See Stegall v. West, 11 Vet. App. 268 (1998). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To this end, on remand, the AOJ should arrange to obtain an addendum opinion from an appropriate physician, preferably, a urologist, based on claims file review (if possible). The AOJ should only arrange for further examination of the Veteran if deemed necessary in the judgment of the individual designated to provide the addendum opinion. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent record. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Washington, DC, and that records dated since May 2019 have been associated with the record; however, records since that time may exist. Hence, the AOJ should request all VA medical records dated since May 2019. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim (to include regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. The matter is 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 2019. 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 concerning and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include, private (non-VA) medical records. 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 to obtain an appropriate physician—preferably, a urologist, an addendum opinion addressing the etiology of the Veteran’s penile lesions, based on claims file review (if possible). Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should reflect consideration of the Veteran’s documented medical history and assertions. Following review of all relevant evidence of record, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s penile lesions (a) was caused OR (b) is or has been aggravated (worsened beyond natural progression) by service-connected epididymitis, to include medications taken for this disability, including Tamsulosin. Both causation and aggravation must be addressed. If aggravation is found, the physician clinician should attempt to quantify the extent of additional disability resulting from aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to the aggravation. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. To help avoid future remand, ensure that the 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. See Stegall, supra. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal, considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.