Citation Nr: 21073023 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-14 237 DATE: December 7, 2021 REMANDED Entitlement to a separate compensable rating for removal of the left testicle associated with service-connected residuals of left groin lymph node excision is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from October 1978 to October 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a June 2020 decision, the Board, in pertinent part, denied a compensable rating for residuals of left testicle removal (other than a consequent scar). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied a separate compensable rating for removal of the left testicle associated with service-connected residuals of left groin lymph node excision and remanding that matter for readjudication. Thereafter, in June 2021, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. As discussed in greater detail below, a remand is necessary to ensure compliance with the June 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a separate compensable rating for removal of the left testicle In June 2021, the Board remanded this case, in part, to obtain a medical assessment as to the functionality of the Veteran's right testicle, to include measurements of his sperm count, if necessary. The Board instructed that any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Pursuant to the June 2021 remand, a VA medical examination and opinion was obtained in July 2021. The examiner noted that the Veteran's right testicle was present, but that the Veteran reported that he could not achieve an erection or ejaculate. The examiner found that an assessment for functionality of the right testicle was beyond the scope of a forensic examination and would require extensive urologic consultation, "up to and includ[ing] microsurgery to obtain seminal fluid" if the Veteran could not achieve an erection or ejaculate. It is unclear from the record whether the Veteran was asked about or consented to further urologic consultation, to include the possible need for microsurgery. Because the opinion provided is not entirely responsive to the Board's remand directives, and because the examiner has indicated that additional testing would be beneficial to a further understanding of the severity of the Veteran's disability, additional development is necessary. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA has provided an examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Schedule the Veteran for a new examination for purposes of assessing whether he has any remaining function in his right testicle in terms of sperm production/fertility. The examiner must review all pertinent records associated with the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, if feasible. If the examiner finds that further urologic consultation is required to determine whether the Veteran's right testicle is functional, to include microsurgery to obtain seminal fluid for a sperm count, the Veteran should be referred to an appropriate care provider so that the necessary consultations and/or testing can be conducted, subject to the Veteran's consent and the availability of necessary resources. If the Veteran declines to consent to further testing, or further testing is not feasible for medical or other reasons, those facts should be documented in the record. After examining the Veteran and reviewing the record, together with the results of any testing that is performed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's right testis is nonfunctioning. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.