Citation Nr: 21014105
Decision Date: 03/11/21	Archive Date: 03/11/21

DOCKET NO. 14-27 395
DATE: March 11, 2021

REMANDED

Entitlement to compensable rating for gynecomastia is remanded.

REASONS FOR REMAND

The Board remanded the case to the Agency of Original Jurisdiction (AOJ) in June 2020 for additional development. See 06/04/2020 BVA Decision. As discussed below, the Board finds that there was not substantial compliance with the remand directive.

Entitlement to compensable rating for gynecomastia is remanded.

In the June 2020 remand it was noted that there was no indication that the examiner who conducted a 2019 examination asked specific questions that would aid the Board in assessing the propriety of rating Veteran’s disability under the criteria for dysfunction of the urinary system. See 38 C.F.R. § 4.116, Diagnostic Code 7628. The Board directed the AOJ to ask the clinician who conducted the July 2019 examination to state whether he in fact asked the Veteran if he had any of the symptoms noted in the 2018 remand, e.g., voiding symptoms or tenderness of breast tissue, etc. If so, the examiner was to provide the Veteran’s answers via the appropriate DBQ.

In the addendum (09/24/2020 C&P Exam, 2nd Entry) the examiner noted that the Veteran “did not give any positive complaints of urinary issues,” and “he did not have any change in sexual functioning.” Id. P. 4. The Board notes that the examiner did not specify whether he in fact asked the Veteran the specific questions posed by the Board. What a claimant may report on his/her own volition is not necessarily the same as the information one would provide in response to specific questions. Hence, the Board finds that the remand directive was not substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Moreover, as over 18 months has passed since that examination it seems unlikely the examiner would remember whether he expressly asked the questions that were meant to be posed to the Veteran.  Accordingly, it seems the better approach would be to arrange another examination.

The matters are REMANDED for the following action:

1. Inform the clinician who conducted the July 2019 examination and provided the June 2020 addendum that he must state whether he in fact asked the Veteran if he had any of the symptoms noted in the 2018 remand, e.g., voiding symptoms or tenderness of breast tissue, etc.

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2. Arrange another examination of the Veteran with an appropriate examiner.  He or she must ask the Veteran whether he had any of the symptoms noted in the 2018 remand, e.g., voiding symptoms or tenderness of breast tissue, etc.  The examination report must expressly note that the inquiry was made.  

To ensure compliance with the Board’s remand directives, require the clinician to use the appropriate DBQ for the areas noted by the Board. Ask the clinician to address the etiology of the Veteran’s erectile dysfunction as part of the examination.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	W. T. Snyder

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.