Citation Nr: 21068885
Decision Date: 11/15/21	Archive Date: 11/15/21

DOCKET NO. 07-06 457A
DATE: November 15, 2021

REMANDED

Entitlement to an initial compensable rating for epididymitis is remanded.

Entitlement to an effective date earlier than October 5, 2004 for entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1968 to February 1970. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 (epididymitis) and June 2009 (TDIU) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a travel Board hearing before a Veterans Law Judge in August 2010 and at an October 2015 videoconference hearing before a different judge. The judges are no longer with the Board. Transcripts of both hearings are of record. During the October 2015 videoconference hearing, the Veteran waived his right to have a third hearing before a Veterans Law Judge.  See Arneson v. Shinseki, 24Vet. App.379 (2011). 

These matters were remanded by the Board for additional development in March 2011, June 2016, June 2017, May 2018, May 2020, and May 2021.

1. Entitlement to an initial compensable rating for epididymitis is remanded.

While additional delay is extremely unfortunate, the Board finds further development is required before the Veteran's claims are decided. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran's claim for a compensable initial rating for epididymitis stems from the original April 2006 rating decision granting service connection.  As such, the relevant period on appeal for a compensable initial rating for epididymitis is from February 13, 1970, the effective date of service connection.

This claim was most recently remanded by the Board in May 2021. In its remand, the Board noted that the rating criteria provides that epididymitis is rated according to the criteria for urinary tract infection.

However, the Board also indicated that a private opinion dated in March 2021 reflects a medical opinion that the Veteran's urinary frequency is a manifestation of service-connected epididymitis. In addition, the Board expressed that the October 2020 VA examination noted urinary frequency but did not address whether urinary frequency is a symptom of epididymitis. 

In the May 2021 remand, the Board, among other things, requested an addendum opinion that specifically requested the examiner to address whether urinary frequency is a symptom of epididymitis. 

After review, the Board finds that there has not been substantial compliance with its May 2021 remand directives. The examiner failed to address whether urinary frequency is a symptom of epididymitis as a private opinion dated in March 2021 indicated. Thus, a remand is necessary. 

2. Entitlement to an effective date earlier than October 5, 2004 for entitlement to TDIU is remanded.

The issue of an earlier effective date for the award of a TDIU is inextricably intertwined with the issue of an increased rating for epididymitis being remanded and therefore must also be remanded.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate VA examiner in order to address the Veteran's epididymites symptoms. 

The examiner must opine as to whether urinary frequency is a symptom of the Veteran's service-connected epididymitis. Provide a detailed rationale for the opinion.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.D.

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.