Citation Nr: 21011372 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-14 781A DATE: March 1, 2021 REMANDED Entitlement to service connection for removal of right testicle is remanded. Entitlement to service connection for a gastrointestinal disability, other than gastroesophageal reflux disease (GERD), to include gastritis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1973 to September 1974. These matters come before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by the VA Regional Office (RO) in Montgomery, Alabama. In a February 2019 decision, the Board denied the Veteran’s claim for service connection for removal of right testicle. He appealed that decision to the United States Court of Appeals for Veterans Claims. In a November 2019 Joint Motion for Partial Remand, the parties agreed that the Board erred by not addressing the evidence of record and by applying the wrong standard for rebutting the presumption of soundness. The appeal was then remanded to the Board to address these errors; in a May 2020 remand, the matter was remanded to the RO for additional development. Concerning the claim for service connection for a gastrointestinal disability, other than GERD, to include gastritis (hereinafter, “gastritis”), that claim was previously before the Board in October 2020, at which time it was remanded to the RO for additional development. Unfortunately, the Board finds that the development requested in its remand orders from May and October 2020 has not been accomplished, and an additional remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Right Testicle In its May 2020 remand instructions, the RO was asked to obtain a medical opinion regarding the Veteran’s right testicle removal and his service, to specifically include comments on aggravation of the condition by military service. In a June 2020 opinion, a VA examiner concluded that the Veteran’s right testicle clearly and unmistakably existed prior to service and was aggravated beyond its natural progression by service. However, the examiner did not provide an adequate rationale for this conclusion, and in October 2020, the RO obtained an addendum report. In that report, the examiner confirmed that the Veteran’s testicle condition was a congenital defect but that it was less likely than not that the condition was subject to a superimposed disease or injury during military service. As rationale, the examiner noted only that there was no evidence in the record of such an injury. The Board notes that examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (finding VA’s examiner’s opinion flawed because it relied solely on the absence of contemporaneous medical evidence). As noted in its May 2020 remand, the evidence of record shows that the Veteran was seen on multiple occasions during service for issues related to his right testicle condition, following its in-service removal. The record shows complaints of aching pain in the right buttocks and left inguinal region, and pain in the right scrotal or groin region when lifting. The Board found in May 2020 that these records suggested a possible aggravation. To date, there has been no medical opinion which adequately explains whether or not the Veteran’s congenital right testicle condition was subject to additional disease or injury resulting in additional disability. Therefore, a new medical opinion is warranted. Gastritis In its October 2020 remand, the Board instructed the RO to obtain a medical opinion which addressed the etiology of any gastrointestinal disability other than GERD. In the resulting November 2020 examination reports, a VA examiner determined that because the Veteran’s gastritis was diagnosed many years after service, it was less likely than not due to service. She explained that the symptoms he experienced while serving—abdominal pain, cramping and constipation—“can be symptoms of many different illnesses.” There is no rationale for this conclusion, or explanation as to why these symptoms were or were not due to non-GERD disabilities. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot support a claim); Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative when it uses equivocal language such as “could” or “might,” without any other rationale or supporting data). Thus, the Board finds that an addendum opinion is warranted, in which an examiner addresses the Veteran’s in-service complaints of gastrointestinal symptomology and whether these symptoms were manifestations of subsequently diagnosed conditions, to include gastritis. The matters are REMANDED for the following action: 1. Return the file to the examiner who provided the October 2020 examination report. If that examiner is not available, the record should be provided to another medical professional so as to render the requested opinion. The examiner is asked to provide an opinion whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right testicle condition, which is a congenital defect, was subjected to a superimposed disease or injury during service that resulted in additional disability apart from the congenital or developmental defect? The examiner is asked to specifically address the Veteran’s in-service orchectomy and his documented post-orchectomy symptoms of aching pain in the right buttocks and left inguinal region, and pain in the right scrotal or groin region when lifting. The examiner is advised that the sole basis for a negative opinion cannot be the fact that the Veteran’s service treatment records are negative for complaints, treatment, or diagnoses referable to the claimed disorders. A detailed rationale for all opinions should be provided. 2. Return the file to the examiner who provided the November 2020 examination report. If that examiner is not available, the record should be provided to another medical professional so as to render the requested opinion. The examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s gastrointestinal disability other than GERD, to include gastritis, had its onset in service or is otherwise related to service, to include the Veteran’s in-service abdominal pain, cramping, constipation, diagnosis of gastroenteritis, and complaints of stomach issues since service. The examiner is advised that the Veteran is competent to report the onset and the continuity of any symptomatology since service. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.