Citation Nr: 21005746 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-04 749 REMANDED Entitlement to service connection for right testicle condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to December 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011, rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran and his representative testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In July 2018, the Board remanded this matter for additional development and consideration. The issue has now been returned to the Board for further appellate consideration. The Board notes that the Veteran filed a claim for entitlement to service connection for removal of the right testicle. It is well settled that when a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran's symptoms include hernia, testicular atrophy, and pain. Accordingly, the Board has recharacterized the Veteran’s claim as one for a right testicle condition due to his military service. Entitlement to service connection for right testicle condition is remanded. The Veteran contends that he is entitled to service connection for a right testicle condition as a result of his military service. Specifically, he contends that his current right testicle condition is the result of an injury sustained during night training when entering a moving vehicle. See June 2012 Notice of Disagreement (NOD); July 2019 Correspondence from Veteran; April 2018 Board Videoconference; see also July 2012 Buddy Statement. The Board finds the Veteran credible to state that he hurt himself. However, due to the complexity of the disability, the removal of his testicle, he is unable to state that his injury in service caused its removal. Given the aforementioned and the complexity of the disability, an advisory medical opinion is required. The AOJ has the authority to obtain advisory medical opinions under 38 U.S.C. § 5109 in certain instances. After a review of the record, the Board finds that an adequate VA medical opinion addressing the medical condition of the Veteran prior to, during, and after service has yet to be provided. Essentially, the issue under consideration poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109 (2012); 38 C.F.R. § 3.328 (2020). For instance, the previous VA medical examinations accomplished in June 2011, December 2013, and May 2019, began with an incorrect premise that the Veteran had a disability “noted” at entrance. It appears they were relying upon a November 1973 service treatment record. However, the only noted defects on the Veteran’s service entry examination, which is dated in SEPTEMBER 1973 (and NOT November 1973) were reported as, a disclosed operation when the Veteran was six months old, an examiner’s notation of a “hernia at six months old,” and a notation of “no deformities or disabilities.” See Service Treatment Records (STR) at p 31. 38 C.F.R. § 3.304(b). Essentially, the Veteran is presumed sound upon entry to service, where there is no noted defect. Nonetheless, given the incorrect premises relied upon by these examinations, they are inadequate for rating purposes. Additionally, the Veteran submitted private medical opinions received in June 2018 and August 2018, from Dr. Vanderby. See June 2018 Non-Government treatment records; August 2018 Private Medical Opinion. However, the physician merely provided a conclusory opinion that the Veteran's right testicle condition was caused by or a result of the Veteran’s military service and that his pre-existing condition could have been aggravated due to injury in service. Given such, this opinion is of no probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). In light of the above noted medical opinion inadequacies and due to the complexity and confusing information within the service treatment records an advisory opinion appears warranted. For instance, at entrance in September 1973 the records refer to a hernia at six months. Thereafter, in November 1973, the Veteran is diagnosed with testicular atrophy, right, symptomatic, secondary to orchiopexy age one. Yet, in May 1985 records from Holmes Regional Medical Center reflects that the Veteran also had an orchiectomy of the right testicle. As the evidence of record does not provide sufficient information to address this conflicting evidence, a remand is necessary to secure and an adequate opinion regarding the nature and etiology of the Veteran’s claimed condition, specifically whether the current disability existed prior to service, was it aggravated by service, and is the current disability related to service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. Accordingly, the matters are REMANDED for the following action: 1. If not already associated with the record, obtain and associate with the claims file any additional VA or private treatment records pertaining to the claim dating from May 2019 to the present. Any records obtained should be associated with the claims file. If no such records are available, this should be indicated in the claims file. (a) Ask Veteran to submit clearer copies of private medical record from Holmes Regional Medical Center. 2. Submit the claim for an Independent Medical Opinion (IMO) by a urologist. The urologist is asked to specifically consider the following after a review of the claims file, to specifically review ALL 38 pages of service treatment records: (a) The nature and etiology of the Veteran’s hernia operation noted at entrance into service. See SEPTEMBER 1973 Service Treatment Records (STR), at page 31. (b) The nature and etiology of the painful right testicle injury and atrophic right testis that ultimately found the Veteran unfit for service. See NOVEMBER 1973 STR, at page 32. (c) The nature and etiology of the Veteran’s right scrotal pain, resulting in a right inguinal orchiectomy, during which his right testicle was removed. See May 1985 Holmes Regional Medical Center. 3. Then, the examiner is asked to opine: (a) Whether the Veteran’s condition in service clearly and unmistakably existed prior to service. 1. If YES, whether the Veteran’s disability clearly and unmistakably was NOT aggravated by service. The examiner should specifically address the documented treatment records from the Veteran’s time in service. Aggravation means a permanent increase in disability beyond the natural progression of the disease. a. If aggravated, is what the Veteran currently have now related to this disability. 2. If NO, is it at least as likely as not that the Veteran’s current right testicle condition is related to an in-service injury, event, or disease, including the conceded in-service injury sustained during night training when entering a moving vehicle. (b) Whether the Veteran’s condition is congenital? See page 32 of service treatment records. If so, is it a defect or congenital disease. 1. If a congenital disease, is there clear and unmistakable evidence that: i. the condition preexisted service; and ii. the condition was not aggravated during service? 2. If a congenital defect, is there evidence of a superimposed disease or injury as a result of service? (c) Whether the Veteran’s current disability is at least as likely as not related to what he had in the service. (d) The examiner must address each of the additional conditions (hernia operation, painful right testicle injury and atrophic right testis, and right scrotal pain, resulting in a right inguinal orchiectomy, during which his right testicle was removed), and determine what, if any, part it had in the currently diagnosed right testicle condition. (d) The examiner must also consider and address the June and August 2018 private medical opinions by Dr. Vanderby. 4. For all opinions, the examiner is instructed to consider the lay statements of record and set forth the medical reasons for accepting or rejecting the Veteran's statements regarding his symptomatology. • Any opinion expressed by the VA examiner should be accompanied by a rationale, and if medical literature is relied upon, the VA examiner should identify the referenced material. • The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • The examiner should note that clearly and unmistakably means that the evidence be obvious, manifest, and undebatable in establishing that it preexisted service and that it was not aggravated by service. See Cotant v. Principi, 17 Vet. App. 116 (2003). • The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.