Citation Nr: 21029331 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-57 804 DATE: May 13, 2021 REMANDED Entitlement to a compensable rating for service-connected left varicocele condition is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from December 1974 to April 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In February 2020, the Board remanded the issue on appeal for further development. The issue has returned to the Board for further appellate consideration. When evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, during the January 2020 Board hearing, the Veteran testified that he has been unable to work due to the pain associated with his service-connected left varicocele disability. As such, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a compensable rating for service-connected left varicocele condition is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the February 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran with a new VA examination to determine the severity of his service-connected left varicocele. The examiner was directed to address the Veteran's contentions presented during the January 2020 Board hearing regarding his symptoms of urine leakage, increased urinary frequency, and a weakened stream. Pursuant to the February 2020 Board remand instructions, separate VA examinations for urinary tract conditions and male reproductive system conditions were conducted in March 2020. The Board finds that the opinions are inadequate, as the examiner did not specifically address the Veteran's lay statements and contentions presented during the January 2020 Board hearing. The examiner provided a diagnosis of voiding dysfunction and concluded that the etiology of the condition was unknown. The Board finds the examiner's opinion to be conclusory as no rationale was provided. Furthermore, the examiner did not address the Veteran's contentions raised in the January 2020 Board hearing. As such, the March 2020 VA examiner failed to consider and discuss relevant evidence and provided a conclusory opinion. As such, the opinions are not currently adequate. Accordingly, to ensure compliance with the directives of the February 2020 remand, new VA medical opinions should be obtained. See Stegall, 11 Vet. App. at 271. Furthermore, the record reflects that the Veteran was afforded another VA examination for male reproductive organ conditions in April 2021, at which time the examiner noted that no varicocele was found on examination, and thus, the service-connected diagnosis had resolved. The Board finds that clarification is needed as to the conflicting medical evidence with regard to whether the Veteran's service-connected left varicocele has resolved. Finally, a review of the claims file reveals that the most recent supplemental statement of the case (SSOC) was issued in July 2020. Thus, the April 2021 VA examination for male reproductive organ conditions has not been considered by the AOJ in conjunction with the claim currently on appeal. Thus, the AOJ must readjudicate the claim with consideration of this additional evidence. 38 C.F.R. § § 19.31, 20.1304(c). 2. Entitlement to a TDIU is remanded. As previously indicated, the Board finds that entitlement to a TDIU has been raised by the record. Rice, 22 Vet. App. at 453-54. The Board further finds that the issue of the Veteran's entitlement to a TDIU is inextricably intertwined with the issue remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned appeal. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Furthermore, the Veteran should be given the opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran's employment status throughout the relevant period, education, and service-connected limitations. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so as to afford him with an opportunity to provide a description of his employment history and educational background. 3. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected left varicocele. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the current severity of the Veteran's service-connected disability. The examiner is requested to comment on the severity of the Veteran's service-connected left varicocele throughout the rating period. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. The examiner is specifically asked to evaluate and address the Veteran's contentions that he has experienced urine leakage, increased urinary frequency, and a weakened stream. See January 2020 Board hearing transcript. If any such disabilities are identified, the examiner is asked to opine as to whether it is at least as likely as not that this symptom (or symptoms) stems from the service-connected left varicocele. The examiner is also asked to address the April 2021 VA examiner's conclusion that the Veteran's service-connected left varicocele has resolved. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. After completing all indicated development, the Veteran's claims, to include the issue of entitlement to a TDIU, should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.