Citation Nr: 21013165 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-01 386 DATE: March 8, 2021 REMANDED Service connection for a genitourinary disorder, to include epididymo-orchitis, prostatitis, and residuals of varicocele surgery, is remanded. INTRODUCTION The Veteran served on active duty from February 1989 to July 1989, from November 1990 to May 1991, and from June 15, 2007 to July 15, 2007. In addition, from 1989 to 2011, the Veteran also served with the Navy Reserve. This included various periods of active duty for training (ACDUTRA) and inactive duty for training (INADUTRA). In fact, the Veteran had a physical requirement test (PRT) in June 2001 during a period of INACDUTRA, which constituted a period of active duty because the AOJ determined that a right knee injury was incurred at that time. See 38 U.S.C. §§ 101(2), (23), (24); 38 C.F.R. §§ 3.1(d), 3.6(a); Hill v. McDonald, 28 Vet. App. 243, 251-53 (2016). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran requested a Travel Board hearing before a Veterans Law Judge in his January 2014 VA Form 9. In an August 2014 statement, the Veteran changed this request to a Board videoconference hearing. However, in a June 2016 statement, the Veteran explicitly withdrew his request for the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). In October 2018 and April 2020, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review. REASONS FOR REMAND Service connection for a genitourinary disorder, to include epididymo-orchitis, prostatitis, and residuals of varicocele surgery, is REMANDED. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, substantial compliance with the remand order, but not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In any event, a failure by the Board to ensure compliance with previous remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In the present case, the AOJ did not substantially comply with some aspects of the development requested in the Board’s most recent April 2020 remand. That is, in accordance with the instructions of the Board’s April 2020 Board remand, the AOJ secured a June 2020 VA medical opinion from a VA physician assistant. However, this VA medical opinion addressing the etiology of the Veteran’s genitourinary disorder, although probative, is not fully adequate. On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, Instruction #2 of the April 2020 Board remand requested, in part, that a VA clinician opine whether “it is at least as likely as not” (a 50 percent probability or greater) that the Veteran’s current chronic genitourinary disorders were caused or aggravated beyond their natural progression as a result of a period of ACDUTRA from January 24, 1999 to February 6, 1999. In response, the Board has reviewed the June 2020 VA medical opinion secured from a VA physician assistant. This VA physician assistant assessed that the Veteran’s “male reproductive issues” began in 1998 (which is prior to his period of ACDUTRA from January 24, 1999 to February 6, 1999). He further opined that there is “no objective evidence for an aggravation” of the male reproductive condition(s) due to training in the Navy Reserve after 1998. He added there was no “Line of Duty Statement” for any genitourinary injury during the Veteran’s service in the Navy Reserve. (The Board points out that a Line of Duty Statement is not required in order to find that a disability was incurred or aggravated during a period of ACDUTRA / INACDUTRA). Most importantly, the June 2020 VA physician assistant failed to consider the significance, if any, of clinical evidence of record dated in January 1999, which documented emergency room treatment for left testicular pain and swelling after the Veteran lifted 80 pounds. This occurred during a confirmed period of ACDUTRA annual training (AT) from January 24, 1999 to February 6, 1999. See January 27, 1999 George L. Mee Memorial Hospital treatment note; January 27, 1999 Navy Reserve treatment note; and February 2000 Annual Retirement Point Record from Naval Reserve Personnel Center. On this issue, the Court has held that an adequate medical opinion with regard to etiology should consist of a discussion of all relevant evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Court has also held that a VA medical examiner’s conclusions were of “questionable probative value” when the VA examiner failed to consider certain relevant information. Mariano v. Principi, 17, Vet. App. 305, 312 (2003). The June 2020 VA physician assistant failed to discuss this pertinent clinical evidence of record above, in the context of determining whether there was aggravation of a genitourinary disability during his January 1999 confirmed period of ACDUTRA. First, therefore, although it will result in additional delay in adjudicating the appeal, a remand is required to ensure substantial compliance with the Board’s previous April 2020 Board remand. The AOJ must obtain a VA addendum opinion. This new VA medical opinion should address whether a preexisting genitourinary disorder, to include epididymo-orchitis, prostatitis, and residuals of varicocele surgery, was permanently worsened beyond the natural progression of the disease during the Veteran’s period of ACDUTRA annual training (AT) from January 24, 1999 to February 6, 1999. This VA medical opinion should address the pertinent evidence of record. If the same June 2020 VA physician assistant is not available, another qualified VA clinician will provide the addendum opinion. Another VA examination for the Veteran’s genitourinary disorders on appeal is not necessary unless the VA clinician specifically requests one. Second, private Ferrell-Duncan Clinic treatment notes dated in October 2007 and May 2010 documented that the Veteran was being seen by a private urologist, “Dr. Peter J. Trinca.” In addition, a September 2019 non-VA note confirmed VA Choice Program approval for medical care with a private urologist. However, these private urology records are not currently present in the claims file. Therefore, the AOJ should ask the Veteran to complete the necessary authorization (a VA Form 21-4142) and (a VA Form 21-4142a) to secure private urology records from “Dr. Peter J. Trinca” dated from 2007 to 2010 and private urology treatment approved through the VA Choice Program dated from 2019 to the present. The AOJ should make two requests for the authorized records from these private providers, unless it is clear after the first request that a second request would be futile. See 38 C.F.R. § 3.159(c)(1). Third, since the entire appeal is already being remanded for further development, the Board sees the Veteran’s VA treatment records on file from the VA Medical Center (VAMC) in Fayetteville, Arkansas, date to July 2020. If the Veteran has had any additional treatment at the VA, these records should be obtained. This matter is REMANDED for the following action: 1. Obtain VA treatment records from the VAMC in Fayetteville, Arkansas, dated from July 2020 to the present, and associate them with the claims file. 2. Ask the Veteran to complete and return the necessary authorization (VA Form 21-4142) and (VA Form 21-4142a) to secure private urology records from “Dr. Peter J. Trinca” dated from 2007 to 2010 and private urology treatment approved through the VA Choice Program dated from 2019 to the present. If the Veteran provides the required authorization, the AOJ should make two requests for the authorized records from these private facilities, unless it is clear after the first request that a second request would be futile. Finally, the Veteran is also asked to provide any of the above private treatment records himself, if he has them in his possession. 3. After completion of steps 1-2, obtain a VA addendum opinion from the June 2020 VA physician assistant for the genitourinary disorder on appeal. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. Only if deemed necessary by the VA examiner is another VA genitourinary examination necessary. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinion. The VA examiner is asked to provide a response to the following: (a.) Was the Veteran’s preexisting genitourinary disorder (to include epididymo-orchitis, prostatitis, and residuals of varicocele surgery) “at least as likely as not” (i.e., 50 percent or more probable) permanently worsened beyond the natural progression of the disease during the Veteran’s confirmed period of ACDUTRA annual training (AT) from January 24, 1999 to February 6, 1999? (b.) In rendering the above opinion, the VA examiner should focus on the following relevant evidence: • A January 27, 1999 Navy Reserve STR treatment note indicated the Veteran was seen for a history of left testicular pain for which he previously had left testicular varicocele surgery in June 1998. He reported a prior history of left testicle swelling with testicular pain several times in the past. The diagnosis was left epididymitis and possible inguinal hernia and status post left varicocele surgery in June 1998. He was referred to another hospital’s emergency room for care and received antibiotics. (This occurred during a period of ACDUTRA in January 1999). • A January 27, 1999 George L. Mee Memorial Hospital treatment note showed that the Veteran was seen for left testicular pain and swelling after lifting 80 pounds. Pain radiated to the left inguinal area. There was soreness to the penis and swelling. A past medical history of epididymitis in 1998 was noted – a June 1998 varicocele surgery. Also, a past medical history was noted of prostatitis in September 1998 with swelling and soreness. Upon examination in January 1999, left testicle swelling and tenderness and a painful epididymitis was seen. The diagnosis was possible left testicular torsion. (This occurred during a period of ACDUTRA in January 1999). • Years later, at a June 2007 STR pre-deployment health assessment, a referral to GU was initiated due to “chronic scrotal pain.” The final medical disposition was that the Veteran was not deployable due to his chronic scrotal pain. • In an August 2008 Navy Reserve treatment record, the Veteran was noted to have a history of left varicocele repair several years ago. The Veteran complained of left inguinal and testicular pain while running. Pain and swelling were noted to have resolved following a few days of decreased activity. The Veteran was cleared by urology for PRT participation. A firm scrotal support was recommended during strenuous activities. • Ferrell-Duncan Clinic treatment notes dated in October 2007 and May 2010 documented that the Veteran has chronic orchalgia (left testicular pain) with a previous varicocele repair. This has “improved over time.” However, he continues to get testicular swelling upon “significant activity.” The assessment was that in regard to his chronic orchalgia with varicocele repair, his testicular exam was normal. The private clinicians determined the Veteran was stable on those occasions. • A May 2015 VA primary care physician note recorded the Veteran had surgery in June 1998 for varicocele of the left testicle. The Veteran reported he then “blew it out again” (presumably in January 1999 during his period of ACDUTRA). The Veteran reported his left testicle “occasionally” swells at which time he visits a doctor to make sure there is no infection. The assessment was varicocele left testicle. • VA treatment records dated from 2016 to 2020 document that the Veteran took antibiotics once a year due to prostate infections with episodes of swelling to the left testes. • In an October 2017 VA primary care physician note, the Veteran reported left testicular pain, which he stated “was actually doing better.” The Veteran reported that if he is inactive for 3-4 days, he is ok. But he does get bladder / prostate infections. He also was unable to deploy with the Navy in 2007 due to his genitourinary disability because he cannot run and has to be careful when lifting heavy items. The assessment was testicle pain and varicocele. • The impression of an October 2017 VA testicular ultrasound was no intratesticular masses; a small left varicocele; small left epididymal cysts; and small bilateral hydroceles. The Veteran reported testicular pain for the past two weeks after possibly lifting something or jarring himself while he was in a dump truck. • A February 2019 VA primary care and nursing note and VA addendum note documented prostate issues for the past two weeks. The assessment was prostatitis. He was prescribed Cipro 500mg x 21 days and Flomax. • At a March 2019 VA genitourinary examination and opinion, the Veteran reported that if he runs or hikes his left testicle swells. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.