Citation Nr: 21023702 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-22 860 DATE: April 21, 2021 REMANDED Entitlement to a compensable rating for a left varicocele is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1984 to August 1992. This appeal arose to the Board of Veterans’ Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In September 2017, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing is associated with the record. In November 2018, the Board remanded the issues on appeal for further evidentiary development. 1. Entitlement to a compensable rating for a left testicle disability, to include varicocele and chronic epididymitis, is remanded. The Veteran seeks a compensable rating for his left testicle disability. The Board notes at the outset that there has been some confusion about the precise nature of this disability. As noted in the Board’s November 2018 decision, the Veteran withdrew a claim to reopen a previously denied claim for service connection for chronic epididymitis, which he argued in the past was intertwined with his left varicocele. However, his rating Codesheet characterizes the service-connected disability as “left varicocele, also claimed as epididymitis now with erectile dysfunction.” Moreover, the Veteran’s service treatment records show multiple instances of treatment for epididymitis, and positive nexus opinions from a VA examiner in October 2014 and December 2014 indicate the Veteran has had recurrent episodes of epididymitis since his service. In February 2016, a VA Compensation and Pension (C&P) examination report reflects the Veteran dealt with recurrent episodes of epididymitis, which at times forced him to stay home from work. In light of this evidence, the Board remanded the issue on appeal in November 2018 with instructions to rate the Veteran’s left testicle disability under the appropriate criteria, including, if indicated, under 38 C.F.R. § 4.115(a), which directs VA to rate epididymo-orchitis as urinary tract infections. The Veteran received a C&P examination in August 2020 which only evaluated his left varicocele. Then, in January 2021, the examiner provided an addendum stating, “Veteran[’]s condition is not a urinary tract infection it is a medical condition caused by enlarged veins within the scrotum.” There was no discussion regarding the Veteran’s epididymitis or of any other relevant symptoms. The Board finds another remand is required to ensure the RO substantially comply with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board understands the Veteran withdrew his claim for chronic epididymitis at his Board hearing; however, it is apparent that the original grant of service connection for left varicocele was meant to include recurrent epididymitis, as the VA examiner explained in October 2014 and December 2014 nexus opinions that the Veteran had suffered from this condition since his service. Moreover, the Board ordered the RO to evaluate all of the Veteran’s symptoms relating to his testicular disability. In response, the January 2021 VA medical opinion simply stated that varicocele was distinct from urinary tract infections. The opinion made no effort to evaluate the Veteran’s symptoms as directed by the Board. Thus, an updated examination is in order. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for sleep apnea is remanded. In its November 2018 remand, the Board directed the RO to provide the Veteran an examination to determine the etiology of his sleep apnea. The Board noted the Veteran had service treatment records that were missing, and that in such cases VA has a heightened obligation to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing his claim, and to explain its decision. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran received a C&P examination in August 2020. The examiner provided a negative nexus opinion with a single sentence of rationale, stating there was “no objective evidence of history, diagnosis and/or treatment related to OSA was found documented on currently available AD STRs.” In a January 2021 addendum, the examiner added the Veteran’s sleep apnea was most likely due to his obesity, noting the Veteran had gained significant amounts of weight since service. The Board is disappointed to note that none of the Veteran’s lay descriptions of his in-service symptoms were addressed by the VA examiner. The Veteran testified at his Board hearing that he had many sleep-related symptoms while in service, including excessive snoring and gasping for air. This is competent evidence that was simply ignored by the VA examiner. Moreover, the examiner’s stated rationale—the lack of service treatment records documenting sleep apnea—is not surprising in this case, because the majority of the Veteran’s service treatment records are missing. The Board further notes that, even if the records were available, a negative opinion based solely on the lack of records is impermissible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence). In any event, an updated examination and opinion are required given the inadequacies of the August 2020 and January 2021 C&P opinions discussed above. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner to determine the nature and severity of his left varicocele disability, claimed as chronic epididymitis. In light of the October 2014 and December 2014 VA C&P opinions of record, the examiner should accept as true that the Veteran’s chronic epididymitis is part and parcel of his service-connected left testicle disability. The examiner is further directed to opine as to whether the Veteran’s symptoms should be rated pursuant to the criteria listed in 38 C.F.R. § 4.115(a). The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. 2. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s sleep apnea. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred in or otherwise related to his service. All pertinent medical records and lay statements, to include testimony at his Board hearing, must be addressed. (c) If it is determined that there is another likely etiology for the Veteran’s sleep apnea, that should be stated. (Continued on the next page)   (d) The examiner is specifically asked to comment on the Veteran’s testimony that he developed sleeping problems in service, including excessive snoring and gasping for air that was commented on by his fellow servicemen. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, Associate 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.