Citation Nr: 21006462 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 180405-326 DATE: February 4, 2021 REMANDED Entitlement to service connection for right acute epididymitis is remanded. Entitlement to service connection for bilateral varicocele is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Army from March 1977 to December 1983. In January 2018, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d) (effective February 19, 2019). The Veteran selected the Higher-Level Review lane when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form, received by VA in January 2018. Accordingly, the March 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board of Veterans’ Appeals (Board) and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). On August 15, 2018, the Veteran submitted a written request to revoke his election of the direct review process and submitted evidence in support of his claims. In a June 2019 decision the Board determined that the Veteran’s newly submitted evidence could not be considered in its decision because despite the Veteran’s written request, over 90 days had passed since the RAMP election form was received. Following the Boards determination and denial of the claims on appeal, the Veteran appealed the June 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 order, the Court granted a Joint Motion for Remand (JMR) submitted by the parties. In the JMR, the parties asserted that the Board failed to apply 38 C.F.R. §§ 20.202(c)(2), 20.303(b)(2), among other concerns to be addressed below. Under 38 C.F.R. § 20.202(c)(2), a claimant may modify the information identified in the Notice of Disagreement (NOD) for the purpose of selecting a different evidentiary record option if (1) the request is made on the appropriate form and (2) is received within one year of the AOJ notification letter or within 60 days of the date the Board received the NOD, whichever is later, so long as the appellant has not submitted evidence or testimony as described in §§ 20.302-20.303. Under 38 C.F.R. § 20.303(b)(2), if a Veteran did not request an opportunity to submit additional evidence on the NOD, but subsequently requested to submit additional evidence within 90 days following VA’s notice that the appeal has been moved to the docket described in § 20.800(a)(ii). The Veteran initially submitted the RAMP Opt-In Election form in January 2018. Specifically, it was received by VA on January 22, 2018. On February 26, 2018, the Veteran was informed that VA had received his RAMP election form and his two claims were removed from the “legacy” review system. VA issued an AMA rating decision on March 9, 2018 and sent notification on March 20, 2018. The Veteran filed a NOD on April 4, 2018 selecting direct review of the AOJ’s decision. On May 18, 2018, the Board notified the Veteran that his NOD was received, and his appeal was docketed for direct review. On August 5, 2018, the Veteran’s request to modify which docket he was on was received. The Veteran submitted evidence between his April 2018 NOD and his August 2018 request to modify; however, the evidence submitted is in support of his concurrent claims on appeal in the “legacy” review system. If the Veteran did not originally select the Evidence Submission docket on the VA Form 10182, but subsequently requests to switch to this docket, then evidence may be submitted within 90 days following VA’s notice that the appeal has been switched to the Evidence Submission docket. 38 C.F.R. § 20.303(b)(2). However, in the present appeal, VA never notified the Veteran that his appeal had been switched to the Evidence Submission docket. Accordingly, the Veteran should have received notice and been afforded the opportunity to present evidence in support of his claim. 1. Entitlement to service connection for right acute epididymitis 2. Entitlement to service connection for bilateral varicocele As noted above, the August 2020 Court order implemented an August 2020 JMR which identified three deficiencies in the Board’s June 2019 decision. The first error was addressed above in the introduction of this remand. The second error identified by the parties is that the Board failed to provide adequate reason and bases about the scope of the Veteran’s claims given evidence of abdominal pain and groin pain. Thirdly, the parties assert the Board failed to ensure compliance with the duty to assist for records from the Miami VAMC from February 2014 to December 2014. The Board recognizes that the JMR pointed to specific instances in the Veteran’s service treatment records and post-service treatment records describing abdominal and right groin pain. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), a Veteran’s claim “may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Accordingly, a new VA examination should be obtained to discuss the Veteran’s abdominal claim and right groin pain in connection with the two claims on appeal. Under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “pain alone without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of functional impairment of earning capacity. Thus, the Veteran should be afforded a new VA examination to determine the nature and etiology of any right epididymitis, bilateral varicocele, abdominal pain, and right groin pain. Specifically, the examiner should address a September 1977 service treatment record noting a possible hernia after pain and swelling on the right side, a March 1979 service treatment record noting right groin pain with enlarged epididymis, a December 1981 service treatment record noting complaints of lower abdominal pain in right inguinal area and scrotum. Further, the examiner should address the similar complaints in a December 2014 treatment note reporting discomfort in the right groin area that radiates down to the right testicle, a May 2015 VA examination noting his current symptoms of right abdomen pain, an October 2016 VA examination summarizing in-service and post-service reports of groin, abdomen, and genital pain. Additionally, the examiner should address the Veteran’s statements about abdominal and groin pain, including a February 2016 statement describing an incident pushing a Jeep in service. Furthermore, the JMR indicated the Veteran is missing VA treatment records from February 2014 to December 2014 from the Miami VAMC. In his September 2016 claim, the Veteran reported that he was treated at a VA Medical Center from February 2014 to September for the disabilities on appeal. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Accordingly, the Veteran’s claims are remanded to obtain any outstanding VA records from the Miami VAMC between February 2014 and December 2014. Furthermore, the Veteran’s claims are remanded to obtain a new VA examination to determine the nature and etiology of his claimed disabilities, to include abdominal pain and right groin pain. The matters are REMANDED for the following action: 1. Obtain the Veteran’s Miami VA treatment records for the period from February 2014 to December 2014. 2. Schedule the Veteran for a VA examination for his right epididymitis, bilateral varicocele, abdominal pain, and right groin pain. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a. Is right epididymitis at least as likely as not related to service? b. Is bilateral varicocele at least as likely as not related to service? c. Is abdominal pain at least as likely as not related to service? d. is right groin pain at least as likely as not related to service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? In addition to the record as a whole, the examiner should specifically address a September 1977 service treatment record noting a possible hernia after pain and swelling on the right side; a March 1979 service treatment record noting right groin pain with enlarged epididymis; a December 1981 service treatment record noting complaints of lower abdominal pain in right inguinal area and scrotum; a May 2015 VA examination noting his current symptoms of right abdomen pain; an October 2016 VA examination summarizing in-service and post-service reports of groin, abdomen, and genital pain; a February 2016 statement from the Veteran describing an incident pushing a Jeep in service. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.