Citation Nr: 21012452 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 12-02 502A DATE: March 4, 2021 REMANDED Entitlement to an initial compensable rating for service-connected epididymitis, to include special monthly compensation (SMC) based on loss of use of a creative organ, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1989 to April 2009. The Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) remanded this issue to the VA Regional Office (RO) for additional development, most recently, in May 2020; the claims file has been returned to the Board for adjudication. Entitlement to an initial compensable rating for service-connected epididymitis, to include SMC based on loss of use of a creative organ, is remanded. In December 2017, the Board denied an initial compensable rating for service-connected epididymitis, finding that such had manifested pain throughout the rating period, but did not result in functional impairment to the extent that a compensable rating was appropriate. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) and in September 2018, the Court granted a Joint Motion for Partial Remand (JMPR) in which the parties agreed, in pertinent part, that the Board failed to set forth an adequate statement of reasons or bases regarding whether he was entitled to a compensable initial rating, including whether an extraschedular rating and/or SMC was warranted. In a number of statements during the appeal, and in one dated in January 2019, representative of the prior statements in general, the Veteran’s attorney contended that “the Veteran’s record is rife with notations of recurrent infections and antibiotic and anti-inflammatory treatment. His private urologist stated in October 2009 that his pain returns as soon as the Veteran finishes antibiotic treatment, going on for six years. He has tried multiple medications, none of which worked. The VA examiner who performed the October 2016 examination stated that his epididymitis is a recurrent infection that requires antibiotic treatment.” Indeed, the Veteran’s VA and private treatment records currently associated with the claims file demonstrate, in summation, that he underwent elective vasectomy during service and experienced resultant epididymitis. He sought private treatment from October 2009 to December 2009 for continued symptoms that required treatment with antibiotics and/or anti-inflammatory medication and underwent private surgical treatment for the same in December 2009. His March 2010 VA treatment records indicate that he presented for unrelated treatment and reported that he was status-post surgery for epididymitis, with relief. His private treatment records dated in June 2013 indicate that he complained of testicular pain, onset last December. He reported that he was not using any medications. He was diagnosed with testicular pain and he and his private physician discussed conservative treatment, with anti-inflammatory medication, however, the Veteran was noted to be unable to take such; he was advised to soak the area daily for relief. The Veteran was afforded VA examinations during the current appellate period, beginning in May 2009, when service connection was granted for epididymitis, in December 2010, without current treatment and with noted history of recurrent symptoms several times after antibiotic treatment. He was examined by VA in July 2015, October 2016, with noted history of recurrent infection that requires antibiotic treatment, and August 2019. In February 2019, the Board, in pertinent part, remanded the claim, directing the RO to procure an opinion addressing whether the Veteran’s service-connected epididymitis required treatment with antibiotic and anti-inflammatory medications since 2003, which is equivalent to continuous intensive management. A VA examiner, in September 2019, opined that the claims file “is silent for the treatment for his epididymitis which does not constitute long-term therapy for his epididymitis. Thus, the nexus has not been established.” She did not discuss the private medical records reflecting antibiotic treatment for the condition in 2009. The Board, in its May 2020 remand, found the September 2019 VA opinion inadequate and directed the RO to obtain the Veteran’s updated VA and private treatment records and procure an opinion as to whether the Veteran’s treatment for his service-connected epididymitis constitutes long-term drug therapy or intermittent or continuous intensive management, specifically considering and addressing his private treatment records in 2009 indicating that his pain returns as soon as he finishes antibiotic treatment, going on for six years, his private treatment records from 2009 to 2013 reflecting treatment with antibiotics, and the October 2016 VA examination wherein the examiner reported that the Veteran had a history of “recurrent symptomatic infection requiring treatment with antibiotics.” In July 2020, a VA examiner opined that the Veteran does not require antibiotics for epididymitis, therefore there is no current antibiotic use. The examiner reported that for specific episodes, post-vasectomy infection in 2003 and recurrences in 2007 and 2008, the therapy was acute, intermittent courses of antibiotics, and the likely duration of such would have been from seven to twenty-one days for each event. The examiner reported that if antibiotics were deemed necessary in the future, their use, more likely than not, would be intermittent and limited to a single course of seven to twenty-one days. The July 2020 VA opinion is inadequate. While the examiner reported that the Veteran did not present for physical examination with current symptoms requiring treatment with antibiotics and stated as such, and commented on his prior use of antibiotics for recurrences of symptoms in 2007 and 2008, the instances she cited, treatment in 2007 and 2008 were dated prior to the appellate period and not discussed by the Board in its inquiry. The examiner did not specifically consider and address the Veteran’s private treatment records in 2009 indicating that his pain returns as soon as he finishes antibiotic treatment, going on for six years, and the October 2016 VA examination wherein the examiner reported that the Veteran had a history of “recurrent symptomatic infection requiring treatment with antibiotics.” It does not appear that the RO obtained the Veteran’s updated VA treatment records resultant to the Board’s May 2020 remand. While it appears that the RO associated the Veteran’s VA treatment records with the claims file, most recently, in April 2019, such action was completed prior to the Board’s May 2020 remand. Further, the April 2019 action associating the Veteran’s updated VA treatment records with his claim file resulted in records dated only until April 2011. Also, the Board, in its February 2019 remand, directed the RO to seek the Veteran’s outstanding relevant private treatment records from The Urology Group of Virginia dated from August 2013 to the present. In February 2019, the Veteran submitted a VA Form 21- 4142, Authorization and Consent to Release Information to VA, in favor of The Urology Group of Virginia. In a March 2019 letter, the RO informed the Veteran that they had requested the private treatment records; in another letter dated in March 2019, the RO informed the Veteran that while they had requested the private treatment records, they had not received such. Review of the claims file, however, is silent for any request made by the RO to The Urology Group of Virginia for the Veteran’s private treatment records. The Board cannot adjudicate the Veteran’s claim with the evidence currently associated with the claims file. The Veteran has asserted that his service-connected epididymitis warrants an initial compensable rating for recurrent symptomatic infection requiring treatment with antibiotics. However, outside of the months during the current appellate period dated immediately prior to his December 2009surgery, no such treatment is currently shown. The VA examiner, in October 2016, reported that the Veteran had a history of recurrent symptomatic infection requiring treatment with antibiotics. No party argues such was the case a number of years prior, however, the Board seeks an adequate medical opinion and clinical evidence, the Veteran’s outstanding relevant private treatment records and updated VA treatment records, as to the course and treatment of his disability since the December 2009 surgery. Thus, on remand, the RO must specifically seek the Veteran’s VA treatment records dated from April 2011 to the present, if any, and obtain his outstanding relevant private treatment records from The Urology Group of Virginia dated from August 2013 to the present, as well as his complete December 2009 surgical records including his discharge instructions. On remand, the RO must also obtain an adequate VA opinion as to whether, over the course of the entire appeal, from May 2009 to the present, the Veteran’s treatment for his service-connected epididymitis constitutes: (1) long-term drug therapy, one or two hospitalizations per year, and/or requiring intermittent intensive management; or (2) recurrent symptomatic infection requiring drainage/frequent hospitalization greater than two times per year, and/or requiring continuous intensive management. The examiner must specifically consider and address the Veteran’s private treatment records in 2009 indicating that his pain returns as soon as he finishes antibiotic treatment, going on for six years, his private treatment records from 2009 to 2013 reflecting treatment with antibiotics, the October 2016 VA examination wherein the examiner reported that the Veteran had a history of recurrent symptomatic infection requiring treatment with antibiotics, and any newly-associated VA and private treatment records demonstrating the course and treatment of his disability since the December 2009 surgery. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2011 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for The Urology Group of Virginia for his complete private treatment records dated from August 2013 to the present, as well as his complete December 2009 surgical records including his discharge instructions. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Then, only after the above development is completed and the Veteran’s claims file contains any and all updated VA treatment records and outstanding relevant private treatment records, forward the claims file to the VA examiner who submitted the July 2020 opinion, or a suitable substitute. If any examiner determines that additional physical examination of the Veteran is required in order to respond fully to the Board’s inquiries, so schedule the Veteran. Based on review of the record, the clinician is requested to provide an opinion as to whether the Veteran’s treatment for his service-connected constitutes: (1) long-term drug therapy, one or two hospitalizations per year, and/or requiring intermittent intensive management; or (2) recurrent symptomatic infection requiring drainage/frequent hospitalization greater than two times per year, and/or requiring continuous intensive management. The examiner must specifically consider and address: (1) the Veteran’s private treatment records in 2009 indicating that his pain returns as soon as he finishes antibiotic treatment, going on for six years; (2) his private treatment records from 2009 to 2013 reflecting treatment with antibiotics; (3) the October 2016 VA examination wherein the examiner reported that the Veteran had a history of recurrent symptomatic infection requiring treatment with antibiotics; and (4) any newly-associated VA and private treatment records demonstrating the course and treatment of his disability since the December 2009 surgery. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If the examiner cannot provide an opinion without resorting to speculation, he or she should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. If the examiner determines that the record does not reflect either: (1) long-term drug therapy, one or two hospitalizations per year, and/or requiring intermittent intensive management; or (2) recurrent symptomatic infection requiring drainage/frequent hospitalization greater than two times per year, and/or requiring continuous intensive management, he or she should provide a full explanation for this finding. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.