Citation Nr: 21023399 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-20 111 DATE: April 20, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals, bilateral scrotal fixation of testicles is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to a disability rating in excess of 10 percent for residuals, bilateral scrotal fixation of testicles with history of testicle torsion is remanded. INTRODUCTION The Veteran served on active duty in the United States Army from June 1988 to June 1992. When this case was previously before the Board in October 2018, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran’s claims are decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As previously noted in the October 2018 remand, the Veteran has indicated his low back, left knee, and left shoulder disabilities originated in service, and that he has experienced ongoing pain since that time. In particular, the Veteran has reported the rigors of his military occupation, which entailed carrying heavy ruck sacks, standing and walking for long periods of time, and lifting heavy artillery shells caused his disabilities. He has also reported experiencing ongoing back pain since his surgery service, and as such, asserts his disability may be consequentially related to his service-connected bilateral scrotal fixation of testicles. In the course of the October 2018 remand, the Board determined comprehensive VA examinations and medical opinions were necessary to address the Veteran’s left knee and back claims. The Board also advised the RO to reconsider the Veteran’s left shoulder disability on the merits, as the RO had previously declined to reopen his claim. Thereafter, the Veteran underwent back examinations in March 2019 and December 2019. Following his examinations, he was diagnosed with degenerative arthritis and disc disease. However, the examiners provided nearly identical medical opinions. In sum, the examiners found the Veteran’s current disability was less likely than not incurred in service. In support of their conclusions the examiners wholly relied on a lack of treatment for his back disability since service. With respect to the issue of secondary causation, the December 2019 examiner failed to address the issue presented, as she instead provided an opinion regarding aggravation. Further, the examiner also failed to consider or discuss the Veteran’s theory of entitlement. In this respect, the Veteran has asserted the spinal tap he received when undergoing his testicle surgery in service caused his current back disability, not that his actual testicle disability has caused his current back disability as discussed by the December 2019 examiner. The Veteran underwent a VA knee examination in December 2019, wherein he was diagnosed with a left knee strain. However, the examiner also concluded the Veteran’s current left knee disability was less likely than not incurred in service. Similarly, the examiner relied principally on the Veteran’s lack of documented medical treatment since service. Examiners cannot wholly rely on a lack of contemporaneous treatment or diagnosis, and ignore a veteran’s statements related to lay observable symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the foregoing insufficiencies, the Board finds new VA examinations and medical opinions must be obtained addressing the Veteran’s left knee and back disabilities. To date, the RO has not obtained a VA examination or medical opinion addressing the Veteran’s claimed left shoulder disability. VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. As noted above, the Veteran has asserted his left shoulder disability may be related to his carrying of heavy rucks and lifting artillery rounds in service. His DD-214 indicates the Veteran’s military occupation was Field Artillery Surveyor, and as such, his reported military occupational rigors are consistent with his military occupation. Further, a review of the Veteran’s outpatient treatment reports from the Durham VAMC indicates the Veteran underwent an x-ray of his left shoulder in July 2019, which revealed arthritis and other changes from prior trauma. Based on these facts and circumstances, the Board finds a VA examination and medical opinion is also necessary prior to final adjudication of this claim. Finally, the Board notes that in the course of the October 2018 remand, the RO was instructed to obtain comprehensive VA examinations addressing the Veteran’s service-connected bilateral scrotal fixation disability, to include the claimed residuals of voiding dysfunction and scars. The Veteran subsequently underwent VA scars and male reproductive conditions examinations in December 2019 and November 2020 respectively. The Veteran underwent a second VA male reproductive conditions examination in February 2021. The examiner that performed the Veteran’s scar examination found no evidence of any scarring; however, the Board notes the Veteran underwent a genitourinary assessment at the Central Texas VAMC in August 2017 wherein the clinician found the Veteran’s radiating testicular pain could be the result of surgical scar tissue. Additionally, the Board notes both the November 2020 and February 2021 male reproductive conditions examiners indicated the Veteran experiences voiding dysfunction. Unfortunately, the February 2021 VA examiner initially indicated the Veteran’s testicle condition affected his urinating, but then curiously later stated the etiology of his voiding dysfunction is unclear. Based on these discrepancies, the Board finds additional VA examinations and medical opinions must be obtained. Accordingly, this case is REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to fully assess the severity of the Veteran’s service-connected bilateral scrotal fixation of testicles with history of testicle torsion. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct any required testing or concludes any required testing is not necessary, he or she should clearly explain why that is so. Following any indicated examination, the examiner is asked to comment on whether the Veteran’s previously diagnosed surgical scar tissue or voiding dysfunction at least as likely as not (a 50 percent probability or greater): a) were caused by the service-connected bilateral scrotal fixation of testicles; or b) were worsened to any degree by the service-connected bilateral scrotal fixation of testicles. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 2. Also, afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to address the etiology of the Veteran’s left knee, back, and left shoulder disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed left knee, back, or left shoulder disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. If the examiner finds the Veteran’s current back disability did not originate in service, the examiner should state whether the Veteran’s back disability at least as likely as not (a 50 percent probability or greater): a) was caused by his service-connected bilateral scrotal fixation of the testicles, to include a spinal tap procedure performed to correct his service-connected disability; or b) was worsened to any degree by his service-connected bilateral scrotal fixation of the testicles, to include a spinal tap procedure performed to correct his service-connected disability. The examiner must specifically address the Veteran’s reports relative to the etiology of the claimed disabilities. In particular, the examiner should address the Veteran’s reports of left knee, back, and left shoulder pain resulting from ruck sack marching and loading artillery shells in service, which has persisted since that time. Additionally, the examiner should also address the Veteran’s reports of back pain following a spinal tap procedure to alleviate his testicle torsion in service. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.