Citation Nr: 21026451 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-50 316 DATE: May 3, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a disorder of the right testicle, to include epididymitis, hydrocele, and pain, is remanded. REASONS FOR REMAND The Veteran served in the United States Navy Reserve and on active duty from January 1981 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in December 2018, at which time the Board denied the issue of entitlement to service connection for a thoracolumbar spine disability and remanded the issue of entitlement to service connection for a disorder of the right testicle, to include epididymitis, hydrocele, and pain. The Veteran appealed the part of the Board's December 2018 decision denying entitlement to service connection for a thoracolumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). The Court ruled, in a July 2020 Memorandum Decision, that the Board failed to adequately explain its reliance on a medical opinion that did not contain a reasoned medical explanation for why the Veteran's degenerative back injury could or could not have begun in service. The Court remanded the issue of entitlement to service connection for a thoracolumbar spine disability to the Board for further proceedings consistent with its decision (e.g., further development for a more adequate medical opinion or an adequate explanation by the Board of its reasons for reliance on the medical opinion that did not contain a reasoned medical explanation for why the Veteran's degenerative back injury could or could not have begun in service). Pursuant to development requested in the Board's 2018 remand, the issue of entitlement to service connection for a right testicle disorder has now returned to the Board. 1. Entitlement to service connection for a thoracolumbar spine disability is remanded. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability... in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additionally, a medical examiner must provide a "reasoned medical explanation connecting" his observations and his conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion."). If an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination report). The Board notes that the term "disability" in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and in the context of a veteran's disability claim, pain may be considered a disability if it diminishes the body's ability to function, whether that pain is diagnosed as connected to a current underlying condition or not. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Where the remand orders of the United States Court of Veterans Appeals or the Board of Veterans Appeals are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 269 (U.S. 1998). Here, the Veteran has been afforded VA examinations for his thoracolumbar spine in December 2011 and September 2016. As the Board noted in the decision, although the December 2011 VA examiner found an etiological connection between the Veteran's thoracolumbar spine disability and his service at least as likely as not, the reasoning set forth in the examiner's opinion for such conclusion simply referred to a pattern in the service treatment records (STRs) without any further specificity or rationale. And as noted above, the Court found, in the July 2020 Memorandum Decision, that the September 2016 medical opinion did not contain a reasoned medical explanation for why the Veteran's degenerative back injury could or could not have begun in service. Accordingly, the Board finds that another VA medical opinion should be obtained before this issue is adjudicated again. The examiner should be asked to provide a rationale for any opinions expressed that takes the Veteran's lay statements into consideration, that considers pain or other symptoms causing functional loss a disability, and that is not based solely on any absence of contemporaneous medical records showing back problems during the period of time between the Veteran's active service and the present. 2. Entitlement to service connection for a disorder of the right testicle, to include epididymitis, hydrocele, and pain, is remanded. The Veteran has indicated, inter alia, on a March 2011 claim form, that he served in the U.S. Navy Reserve from October 1983 to January 1986. He claims that he first injured his right testicle right after his release from active service, and while traveling home to Missouri from Italy, his place of discharge, perhaps as a result of his straining to lift his heavy bags/luggage that he was carrying with him on his way home. The specific dates during which the Veteran was on active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) have not been verified, and given the aforementioned contention by the Veteran, the Board finds that this information is relevant to this claim. As such, the Board finds that the Agency of Original Jurisdiction (AOJ) failed to verify the specific dates of the Veteran's ACDUTRA and INACDUTRA service. On remand, such dates should be verified. Additionally, VA medical opinions were obtained for the Veteran's right testicle disorder in May 2019 and June 2020. The May 2019 examiner opined that the condition is at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness because the Veteran was treated while in service for complaints of testicular pain records dated December 21, 1983 and in 1984, and was in service from 1981 to 1983 and the U.S. Navy Reserve for two years after his active service. However, the AOJ sought the June 2020 opinion because the Veteran was not on active duty in December 1983 and January 1984 and because there is no evidence of a testicle injury or condition during the Veteran's reserve service. Thus, the AOJ requested that the examiner "[p]lease provide another opinion, taking only injuries, events, or diseases during service into consideration." The June 2020 opinion states that "[i]n the absence of repetitive and series [sic] complaints and treatments for veteran's right testicle condition, left epididymitis and erectile dysfunction, both within and after service, it is less likely than not that his right testicle condition, left epididymitis and erectile dysfunction is due to service." However, this rationale is entirely based on a lack of contemporaneous medical records showing chronicity of care after service. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1331 (Fed. Cir. 2006). Additionally, the Veteran's representative has asserted, in the April 2021 Appellant's Post-Remand Brief, that testicles are a part of the endocrine system and that the Veteran's disorder of the right testicle is therefore an endocrinopathy subject to presumptive service connection as a chronic disease under the provisions of 38 C.F.R. §§ 3.307 and 3.309(a). However, as the Veteran's representative admitted therein, it is unclear if the Veteran's testicular disorders fall within the definition of an endocrinopathy. Thus, the Board finds that another opinion must be obtained on the etiology of the Veteran's right testicle disorder after the Veteran's dates of ACDUTRA and INACDUTRA are verified. The examiner should be asked to provide a rationale for any opinions expressed that takes the Veteran's lay statements into consideration, that considers pain or other symptoms causing functional loss a disability, and that is not based solely on any absence of contemporaneous medical records showing problems related to the right testicle during the period of time between the Veteran's active service and the present. The examiner should also opine whether the Veteran's disorders of the right testicle are, from a medical standpoint, classifiable as endocrinopathies. The matters are REMANDED for the following action: 1. Verify through official sources any period(s) of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) that the Veteran served during his time in the U.S. Navy Reserve from October 1983 to January 1986. The sources of such information may include any financial records available through the Defense Finance and Accounting Service (DFAS), as well as the Veteran's military personnel records. The AOJ should verify the specific types of service that the Veteran served, including any ACDUTRA and/or INACDUTRA. The AOJ must also provide the specific dates that the Veteran served each type of verified service. 2. Obtain any service treatment records pertaining to the Veteran's periods of ACDUTRA and INACDUTRA that are not currently associated with the Veteran's claims file. 3. Obtain an addendum opinion concerning the etiology of the Veteran's thoracolumbar spine disability. The examiner must review the claims file. Schedule the Veteran for an examination if one is deemed necessary by the clinician. The clinician is asked to provide a response to the following: (a.) Is the Veteran's thoracolumbar spine disability at least as likely as not related to service, including in-service overuse, back injuries, or treatment as discussed in his STRs and lay statements? The examiner must consider and address the Veteran's description of his physical duties as a Boatswain's Mate as outlined in the Veteran's statement received September 2020. (b.) Is it at least as likely as not that the Veteran's thoracolumbar spine arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must consider and address the Veteran's statement received September 2020. Provide a complete and thorough rationale to support the opinions that takes the Veteran's lay statements into consideration and that is not based solely on any absence of contemporaneous medical records showing back problems during the period of time between the Veteran's active service and the present. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. 4. Obtain an addendum opinion concerning the etiology of any right testicle disorder, to include epididymitis or hydrocele. The examiner must review the claims file. Schedule the Veteran for an examination if one is deemed necessary by the clinician. The clinician is asked to provide a response to the following for each right testicle disorder: (a.) Is it at least as likely as not related to service or any in-service injuries or events (including any injuries or events that occurred during the Veteran's periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA))? (b.) Is it at least as likely as not related to an injury or event that occurred while he was traveling home to Missouri from Italy after his discharge from active duty (including any strain from lifting heavy bags/luggage as explained in the Veteran's statement received September 2020)? (c.) Is it medically classifiable as an endocrinopathy? Provide a complete and thorough rationale to support the opinions that takes the Veteran's lay statements into consideration and that is not based solely on any absence of contemporaneous medical records showing back problems during the period of time between the Veteran's active service and the present. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.