Citation Nr: 21026516 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 01-07 066A DATE: May 3, 2021 REMANDED Entitlement to an increased evaluation in excess of 10 percent for post-operative epididymectomy of the left testicle, with chronic epididymitis, status post orchiectomy of the left testicle, is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from September 1952 to January 1954, including service in the Korean War. Regrettably, in April 2020, the Veteran died during the pendency of the appeal. An August 2020 correspondence reflects that the appellant has been accepted as the Veteran's substitute for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Historically, this matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Following an appeal, in February 2007, the Board denied the claim. In response, the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court). In an August 2008 Order, the Court granted a Joint Motion for Remand (JMR) vacating the Board's decision denying this claim and remanding this claim for further development and readjudication in accordance with the terms of the JMR. To comply with the Court's Order, the Board, in turn, remanded this claim to the Agency of Original Jurisdiction (AOJ) in April 2009. The issue was again remanded in April 2016 and January 2018. In December 2018, the Board denied the claim, and again, the Veteran appealed the decision to the Court. In an August 2020 Memorandum Decision, the Court found that the Board relied on an inadequate VA examination to deny the claim. Moreover, the Court determined the Board failed to provide an adequate statement of reasons or bases for its determination. In the January 2018 remand, the Board instructed the VA examiner to determine whether the Veteran's right testicle was functional or nonfunctional. In her opinion, the VA examiner indicated that the Veteran's right testicle is not atrophic, has normal size and consistency, suggestive that it is functional. She further explained that, nevertheless, the right testicle is only partially functional because the testosterone levels have been low since 2004. The Court noted that the examiner relied on a January 2010 specimen to form her opinion. Moreover, she failed to explain why the Veteran's testosterone levels were a determinative factor relating to functionality, and she did not address whether the testicle was currently functional rather she relied on results from 2004 and 2010 in reaching the conclusion. Thus, the Court found the examination was inadequate, and the Board erred when it failed to ensure compliance of its January 2018 remand directive. Ultimately, the December 2018 Board decision was set aside and remanded for further development and readjudication. The Board notes that in response to the Court's decision, in a February 2021 correspondence, the appellant's representative requested the record remain open for the full 90 days to allow additional arguments. In April 2021, the representative submitted the argument on behalf of the appellant. In accordance with the August 2020 Court decision, the Board finds the claim should be remanded for compliance with the January 2018 remand, to include obtaining an adequate retrospective opinion. The matter is REMANDED for the following action: 1. The AOJ should obtain a retrospective opinion concerning the extent and severity of the Veteran's service-connected post-operative residuals of the epididymectomy with chronic epididymitis, and his post-operative residuals of the left orchiectomy. The examiner must carefully consider all the evidence of record and determine whether the Veteran's right testicle was functional or nonfunctional. Additionally, the examiner should discuss the significance, if any, of the description of the Veteran's testicle noted in the July 2018 (not atrophic, normal size and consistency) and its relation to the functionality of the testicle. The examiner should also consider and discuss the Veteran's noted testosterone levels and whether they were a determinative factor in deciding the right testicle's functionality. Lastly, after a review of all the evidence, the examiner should determine whether it is possible to assess at the time of the July 2018 VA examination whether or not the Veteran's right testicle was functional or nonfunctional. The examiner should include a detailed explanation to support the conclusion. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.