Citation Nr: 21025276 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-60 578 DATE: April 27, 2021 ORDER The request to reopen the claim for compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle as a result of Department of Veterans Affairs (VA) treatment in June 2006 is granted. Entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle as a result of VA treatment in June 2006 is denied. REMANDED Entitlement to an evaluation in excess of 30 percent for right knee replacement is remanded. Entitlement to an evaluation in excess of 10 percent for scoliosis and degenerative arthritis of the lumbar spine is remanded. Entitlement to an evaluation in excess of 10 percent for left knee degenerative arthritis for the time periods prior to April 23, 2015, and from June 1, 2015, is remanded. FINDINGS OF FACT 1. In a June 2007 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim to entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle. 2. Evidence associated with the electronic claims file since the June 2007 rating decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle. 3. Evidence of record does not establish that any additional disability, including chronic epididymitis resulting in loss of right testicle, related to VA treatment in June 2006 was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing reasonable care; or, that the additional disability was due to an event not reasonably foreseeable in furnishing the Veteran’s VA treatment. CONCLUSIONS OF LAW 1. The June 2007 rating decision that denied the Veteran’s claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle is final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 2. The criteria for reopening the claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle as a result of VA treatment in June 2006 have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to February 1977 and from May 1978 to August 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. In August 2017, the Veteran testified at a Decision Review Officer hearing at the AOJ. In May 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. Transcripts of these hearings are included in the electronic claims file. 1. The appeal for whether new and material evidence has been submitted to reopen a claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle as a result of VA treatment in June 2006 is granted. Unappealed rating decisions by the AOJ are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c) (2012). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material”. Smith v. West, 12 Vet. App. 312 (1999). VA regulation defines “new” as not previously submitted and “material” as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this regard, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle was originally denied in a June 2007 rating decision. The AOJ noted that the Veteran had not provided authorization for VA to obtain private hospital reports from Otsego Memorial Hospital where he had received treatment after his June 2006 VA surgery. The Veteran did not initiate a timely appeal for this matter. There is also no indication that additional evidence was received between June 2007 and June 2008, which would have necessitated a reconsideration of the issue on appeal. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the Board concludes that the June 2007 rating decision is final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). In June 2012 and May 2014, the Veteran sought to reopen the claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle. This appeal arises from the AOJ’s April 2015 rating decision that confirmed and continued the previous denial of entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle. Regardless of the AOJ’s actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed AOJ denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring the issue of whether any new and material evidence had been submitted to reopen the veteran’s previously and finally denied claims). Evidence of record received since the last prior final June 2007 rating decision includes statements and hearing testimony from the Veteran; private treatment records from Otsego Memorial Hospital dated in June 2006; records from the Social Security Administration (SSA); VA treatment records dated through March 2018; and VA medical opinions dated in April 2015 and March 2018. Evidence received since the June 2007 rating decision is “new” in that it was not of record at the time of the June 2007 rating decision. This evidence is “material”, as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim, i.e., the existence of an additional disability in post-surgical findings during private treatment after the Veteran’s June 2006 VA treatment. Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus v. Principi, 3 Vet. App. 510 (1992). Under these circumstances, the Board concludes that the criteria for reopening the claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 2. Entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of right testicle as a result of VA treatment in June 2006 is denied. The Veteran has asserted that he suffers from an additional disability, including chronic epididymitis resulting in the loss of right testicle, as a result of VA treatment in June 2006. Under VA laws and regulations, when a veteran suffers additional disability as a result of training, hospital care, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner as if such disability was service-connected. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.358, 3.361 (2020). For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. As the Veteran filed his claim after that date, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1) (2012); 38 C.F.R. § 3.361 (2020). In determining that additional disability exists, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b) (2020). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2020). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2020). Additional disability caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3) (2020). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1) (2020). The second prong of proximate causation requires that the veteran’s additional disability be an event that was not reasonably foreseeable. This fact is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2020). Upon consideration of all of the evidence of record, the Board has determined that entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in loss of the right testicle as a result of VA treatment in June 2006 is not warranted. Evidence of record shows that the Veteran had an additional disability, chronic epididymitis resulting in the loss of the right testicle, after June 2006 VA treatment. On June 1, 2006, the Veteran underwent a right epididymectomy after being treated for right spermatocele, recurrent epididymitis, and pain in groin at Saginaw VA Medical Center (VAMC). Later that night, the Veteran called the VA tele/triage after hours call center complaining of testicular pain. The nurse noted that after surgery that day, the Veteran reported his testicles were extremely bruised and swollen with no pain relief from prescribed post-op medications. He was advised of measures including use of ice packs, elevation, and other pain relief. If the discussed measures did not help, the Veteran was instructed that he should go to the local emergency room (ER). He indicated that he would wait until the morning and call his clinic, but if pain did not improve, he would go to the local ER. On June 2, 2006, a VA provider contacted the Veteran for a physician phone consultation. He reported feeling better and that he would keep his testicles elevated. Another post-operative call later that same day detailed that the Veteran went to his local ER at Otsego Memorial Hospital due to severe pain and swelling. Additional VA treatment records dated on June 5, 2006, detailed that the Veteran went to Gaylord VA Outpatient Clinic with complaints of progressive, increased testicle pain and swelling post-surgery. On examination, the scrotum was swollen, tender, and warm with dependent ecchymosis. The assessment was s/p scrotal surgery. He was given pain medications, instructed to keep the scrotum iced and elevated, and noted to have a follow-up appointment scheduled in two days. He was also instructed to go to Saginaw VAMC Urgent Care the next day if symptoms worsened, such as if pain persisted or swelling increased. In a VA telephone report from June 6, 2006, the Veteran was noted to have presented from Saginaw VAMC to Otsego Memorial Hospital that day with scrotal edema and pain. After ultrasound revealed no blood flow to right testicle, he underwent right orchiectomy. Private treatment records dated in June 2006 from Otsego Memorial Hospital detailed that the Veteran was seen in the ER on June 2 and his pain medication was adjusted. He was later admitted on June 6 with right scrotal swelling, excruciating pain, ecchymosis, and infarction of right testicle. After an ultrasound was obtained demonstrating no blood flow to the right testicle, the Veteran underwent an emergency orchiectomy (post-op 5 days from right epididymectomy). He demonstrated a very large scrotal hematoma and continued on the IV antibiotics he was placed on in the ER. The pathology report reflected testicular necrosis with marked congestion with focal hemorrhage, and soft tissue adjacent to spermatic cord consistent with infarction. He was also treated for a post-op scrotal hematoma and abscess with IV infusions and wound care. Evidence of record does not establish that any additional disability, including chronic epididymitis resulting in loss of right testicle, related to VA treatment in June 2006 was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing reasonable care; or, that the additional disability was due to an event not reasonably foreseeable in furnishing the Veteran’s VA treatment in June 2006. In an April 2015 VA medical opinion, the examiner, a VA urologist, highlighted that testicular infarction leading to the loss of the testicle was a well-known potential complication of an epididymectomy. The examiner acknowledged that the VA treatment provider had failed to order a scrotal ultrasound on June 5, 2006. However, he concluded that the testicular infarction that led to the loss of the testicle happened right after the surgery when the Veteran was in severe pain. It was noted that the possibility of infarction was not addressed by Otsego Memorial Hospital on his June 2, 2006, ER visit and as a consequence the Veteran had to wait until June 5-6. The examiner noted that an ultrasound should have been ordered on June 1 or June 2 to be able to save the testicle should torsion or infarction have been suspected. It was noted that the critical time to save the testicle was around six hours, and definitely the lay time until June 5-6 lost the opportunity to save the testicle. An additional VA medical opinion was obtained in March 2018 to supplement the April 2015 VA examiner’s medical opinion. The March 2018 VA examiner, a VA urologist, explained that in acute testicular pain, there was about a six to eight hour window to save a testicle when it is confirmed that there is no blood flow to the testicle. Testicles with no flow for greater than 24 hours will likely become atrophic over time, an unfortunate event but a known complication. It was indicated that the Veteran was instructed by the VAMC on the evening of June 1, 2006, to go to the nearest ER. As VA had recommended that the Veteran seek care at the local ER when he called, the loss of the testicle was not related to post-op advice given to him on the telephone by the VAMC. It was further noted that the Veteran did not have a face to face appointment (only a phone encounter) with his VA provider on June 2, 2006. The examiner indicated that if a testicular infarction is suspected, the standard of care was that the patient is first given a testicular examination in person to determine the need for an ultrasound. At that time, the Veteran told his VA provider over the phone that he was feeling better and would continue to ice his scrotum. The examiner opined that the loss of the Veteran’s testicle was not caused by or a result of post-op advice provided by Saginaw VAMC on June 2, 2006. The Board considers the findings contained in the April 2015 and March 2018 VA medical opinions to be of great probative value in this appeal regarding proximate cause. The VA examiners provided a complete rationale for the stated opinions based on an extensive and detailed review of the evidence of record. The examiners also explained their opinions regarding proximate cause of the Veteran’s claimed additional disability, supporting those opinions by utilizing medical knowledge and with consideration of the lay assertions of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and there is sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Informed consent documents from the Veteran’s June 1, 2006 VA surgical procedure at Saginaw VAMC clearly noted that risks of the procedure included loss of testes because of poor blood supply, swelling, infection, and pain in testicular area were discussed with the Veteran and that he agreed to having the procedure, providing his signature on a consent form outlining the above discussion. The April 2015 and March 2018 VA examiners also clearly noted that testicular infarction leading to the loss of the testicle was a known complication of an epididymectomy that was discussed with the Veteran during the informed consent process for his surgery. The only evidence to directly support the Veteran’s claim are his lay statements that he suffered chronic epididymitis resulting in the loss of the right testicle as a result of his VA treatment in June 2006. He has asserted that if he was given an ultrasound on June 1-2, 2006, he would not have lost his right testicle. Again, the March 2018 VA examiner highlighted that the Veteran was instructed by VA personnel to go to his local ER if pain did not improve on June 1, 2006 and was never seen face of face at any VA facility on June 2, 2006. Thus, an ultrasound could not have been ordered during that time period. Instead, he told the provider that he as feeling better at that time. The Veteran is capable of observing symptoms related to his claimed additional disability, such as pain and swelling. Nevertheless, his statements and hearing testimony are not competent evidence sufficient to establish that he experienced chronic epididymitis resulting in the loss of the right testicle related to his VA treatment as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that those residuals were due to an event not reasonably foreseeable in furnishing VA treatment in June 2006. Although lay persons are competent to provide opinions on some medical issues, the proximate cause of any additional disability falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic epididymitis resulting in the loss of the right testicle as a result of VA treatment in June 2006, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent for right knee replacement is remanded. 2. Entitlement to an evaluation in excess of 10 percent for scoliosis and degenerative arthritis of the lumbar spine is remanded. 3. Entitlement to an evaluation in excess of 10 percent for left knee degenerative arthritis for the time periods prior to April 23, 2015, and from June 1, 2015, is remanded. During his May 2020 Board hearing, the Veteran asserted that his bilateral knee and lumbar spine disabilities have increased in severity since he was last examined by VA in 2017. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral knee and lumbar spine disabilities. While the record contains April 2013, March 2015, and September 2017 VA examinations regarding the Veteran’s service-connected bilateral knee and lumbar spine disabilities, the examinations also do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Those VA examination reports do not contain passive range of motion measurements. Updated VA treatment records from Detroit VAMC dated since March 2018 should be obtained and associated with the electronic claims file. 38 U.S.C. § 5103A(c) (2012); 38 C.F.R. § 3.159(c)(2) (2020); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The matters are REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran’s service-connected left knee, right knee, and lumbar spine disabilities from Detroit VAMC for the time period from March 2018 to the present. 2. Schedule the Veteran for an examination(s) of the current severity of his left knee, right knee, and lumbar spine disabilities. The examiner must test the Veteran’s active motion (providing results in degrees), passive motion (providing results in degrees), and pain with weight-bearing and without weight-bearing of the left knee, right knee, and lumbar spine. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected left knee, right knee, and lumbar spine disabilities alone and discuss the effect of the Veteran’s left knee, right knee, and lumbar spine disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above actions and any other necessary development, the claims on appeal must be readjudicated, taking into consideration all relevant evidence associated with the record since the October 2017 SOC and March 2018 SOC. If any benefit on appeal remains denied, an SSOC must be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.