Citation Nr: 21062630 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-09 037 DATE: October 8, 2021 REMANDED Entitlement to service connection for a right testicle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to May 1976. In a May 2019 decision, the Board denied entitlement to service connection for a right testicle disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the May 2019 Board decision and remand the appeal. Subsequently, the Board remanded the instant issue in May 2021 to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary, and remand is warranted. The Board remanded the Veteran's claim in May 2021 in order to address the Veteran's assertions that his right testicle disability was due to trauma to his testicles while in service as well as exposure to water contaminants at Camp Lejeune. See May 2021 Board Remand. Consequently, two separate VA medical opinions were produced in July and August 2021. The July 2021 VA medical opinion was authored by Dr. J.W.B. and provided a negative nexus opinion regarding the etiology if the Veteran's right testicle disability as it relates to exposure to contaminated water at Camp Lejeune. See July 2021 VA medical opinion. The Board finds that this opinion was thorough, well-reasoned, and supported by relevant medical literature. A subsequent August 2021 VA examination was conducted by a different doctor, Dr. A.M., regarding direct service connection, including the Veteran's contention that his right testicle disability is related to trauma he suffered in service. Dr. A.M. opined that it is less likely than not that the Veteran's current right testicle atrophy, to include erectile dysfunction, is etiologically related to the Veteran's active service. See August 2021 VA medical opinion. He reasoned that service treatment record (STR) evidence of trauma to the Veteran's testicles in May 1975 resulted to left testicular swelling and pain, not the right testicle. Id. (emphasis added). Further, there was no right testicular atrophy while in service. Dr. A.M. concluded that STRs and medical records do not sufficiently demonstrate that the right testicle atrophy, to include erectile dysfunction, are caused by military service. He cited to a post-military urology consult note in April 2018 that indicated that decrease in the size of the Veteran's right testicle started around 2014, or 38 years after military separation. Further, a post-military urology note in May 2021 documented that erectile dysfunction began in 2013, or 37 years after military separation. Thus, Dr. A.M. concluded that continuity and nexus had not been established. Id. However, a review of the Veteran's STRs indicate that the May 1975 trauma was to both testicles, and the Veteran suffered pain in both his right and left testicles. See May 1975 STR. While the swelling was only documented in his left testicle, pain and trauma did occur to the right side as well - contrary to what is stated in the August 2021 VA medical opinion by Dr. A.M. Thus, the basis of the negative nexus opinion is on an inaccurate factual premise. An opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Thus, a new direct service connection opinion is required on remand. Moreover, Dr. A.M. did not explain why the Veteran's trauma to his testicles while in service could not cause his current right testicle disability. Outside of the inaccuracy outlined above, the remainder of his opinion relied primarily on the absence of contemporaneous medical records, namely stating that the Veteran's right testicle symptoms did not begin until 37 or 38 years post-service, to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The record appears to indicate that the Veteran has suffered from some sort of sexual dysfunction since service. The Veteran stated that since he was kicked in the "private area" during service he is "still having problem [sic] with my sex life." See July 2012 VA Form 21-526. This lay statement regarding chronicity since service was not considered by the examiner. Therefore, the Board finds that remanded is warranted to afford the Veteran with an adequate opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his right testicle disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Thereafter, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's right testicle disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether an examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following: Is it at least as likely as not that the Veteran's right testicle disability was incurred in, or is otherwise related to, his time in service, including the May 1975 trauma to his testicles? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page) 3. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.