Citation Nr: 21006069 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-12 044 DATE: February 3, 2021 REMANDED Entitlement to an initial compensable rating for left testicle varicocele is remanded. REASONS FOR REMAND Entitlement to an initial compensable rating for left testicle varicocele is remanded. The Veteran had active service from March 1991 to September 1994; January 2003 to June 2003; and September 2005 to September 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision granting service connection for left testicle varicocele with a disability rating of 0 percent. In April 2020 the Board remanded the Veteran’s left varicocele claim for a VA medical opinion that identified the nature and severity of all symptoms and manifestations of his left varicocele. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that its April 2020 remand directives have not been substantially complied with, and that further remand is necessary to obtain substantial compliance and permit adjudication of the Veteran’s claim. The Veteran is service connected for left testicle varicocele, with a disability rating of 0 percent. He contends that he is entitled to a higher disability rating. In April 2020 the Board concluded that that there was insufficient probative medical evidence to render a decision in the Veteran’s left testicle varicocele claim. The Board reaches the same conclusion now. The Veteran’s varicocele is currently rated under Diagnostic Code 7120 for varicose veins. 38C.F.R. §4.104. The 0 percent rating requires a showing of an asymptomatic palpable or visible varicose vein. The criteria for higher ratings include, but are not limited to: intermittent edema with symptoms relieved by elevation or compression; persistent edema, with or without beginning stasis pigmentation or eczema; persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; and/or massive board-like edema with constant pain at rest. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. While VA has hitherto characterized the Veteran’s varicocele as asymptomatic, the record reflects complaints by the Veteran, or clinical observation, of testicular, scrotal, or groin pain, tenderness to palpation, and/or swelling on the following occasions: February 2013 VA examination; May 2013 VA treatment note; November 2013 treatment note; February 2016 Notice of Disagreement to VA; May 2017 VA treatment note; October 2017 VA treatment note; May 2018 VA treatment note; June 2018 VA treatment note; February 2019 VA treatment note; and December 2019 hearing testimony. However, the overall disability picture is complicated by the Veteran’s other disabilities, both service-connected and nonservice-connected. The record reflects that the Veteran has other symptoms and manifestations, not contemplated by Diagnostic Code 7120, which are attributable to his varicocele. When a particular service-connected disability is not listed in the rating schedule, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38C.F.R. §§4.20, 4.27. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38C.F.R. §3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). February 2013, May 2018, and February 2019 VA treatment notes reflect that infertility may be a symptom of the Veteran’s varicocele. The most recent VA rating code sheet reflects that VA has associated the Veteran’s infertility with his service-connected prostatitis, rated under Diagnostic Code 7527; however, infertility is not an element of the rating criteria for Diagnostic Code 7527, and the record does not reflect that the Veteran’s prostatitis is rated under a hyphenated diagnostic code pursuant to 38C.F.R. §4.27. Moreover, the record reflects that the Veteran has also been diagnosed with bilateral hydrocele of the testicles, a disability that is not currently service-connected. In light of the foregoing, in April 2020 the Board directed that a VA medical opinion be obtained, and directed that the professional providing the opinion “specifically identify all disability manifestations and symptoms, including but not limited to pain, swelling, and infertility, which are at least as likely as not attributable to the Veteran’s left testicle varicocele.” A VA examination was obtained in October 2020. However, the October 2020 VA examiner’s report was limited to a physical examination of the Veteran’s reproductive organs and documentations of associated clinical findings on the day of the examination, along with documentation of the Veteran’s own report of his history and symptoms. The examiner noted continued pain in the Veteran’s left scrotum following a varicocelectomy in October 2013, as well as “TTP with palpation and palpable/tender fluid filled mass on the superior pole of L testicle.” The report included no independent medical analysis of which of the Veteran’s various claimed symptoms, including the clinical observations documented on the day of the examination, were at least as likely as not attributable to the Veteran’s left testicle varicocele. The Board thus finds that there has not been substantial compliance with its April 2020 remand directives, and that there remains insufficient probative evidence to permit adjudication of the Veteran’s claim. Therefore, the Veteran’s claim should be remanded to obtain a VA medical opinion which is responsive to the Board’s April 2020 VA remand directives, and which specifically identifies all disability manifestations and symptoms, including but not limited to pain, swelling, and infertility, which are at least as likely as not attributable to the Veteran’s left testicle varicocele. The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the October 2020 opinion. If the October 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. (Continued on the next page)   The examiner should specifically identify all disability manifestations and symptoms, including but not limited to pain, swelling, and infertility, which are at least as likely as not attributable to the Veteran’s left testicle varicocele. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. If due to the limits of the examiner’s knowledge, then the RO should refer the claims file to an examiner with the requisite training and experience. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.