Citation Nr: 21031356 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-06 289 DATE: May 21, 2021 ORDER A rating in excess of 10 percent for left chronic epididymitis with bilateral hydroceles and left testicular atrophy (left testicle disability) is denied. REMANDED Entitlement to service connection for a back disorder, to include as secondary to the service-connected left testicle disability, is remanded. FINDING OF FACT The preponderance of the evidence does not demonstrate that the service-connected left testicle disability manifested in recurrent symptomatic infection requiring drainage/frequent hospitalization, continuous intensive management, other voiding or renal dysfunction, or complete testicle atrophy. CONCLUSION OF LAW The criteria for rating in excess of 10 percent for the service-connected left testicle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.115a, Diagnostic Code 7529-7525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board denied an increased rating for the service-connected left testicle disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2020 the parties submitted a joint motion for partial remand (JMR), requesting that the Court vacate and remand the decision of the Board to the extent that it denied entitlement to an increased rating. In a December 2020 Joint Motion for Partial Remand, the Court ordered that the JMR be granted. In December 2020, a letter was sent to the Veteran and his representative in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. In February 2021, the Veteran responded to this letter requesting that the Board adjudicate the case without remand to the Agency of Original Jurisdiction (AOJ) for review of any additional evidence submitted. The Veteran's representative submitted argument in April 2021. Accordingly, the Board may proceed to adjudicate the issue on appeal. 1. Entitlement to a rating in excess of 10 percent for service-connected left testicle disability is denied. A. Preliminary Matters As noted above, the Court granted a JMR that vacated the prior Board decision. The JMR noted that the Board erred by failing to provide an adequate statement of reasons or bases for its determination that an increased rating was not warranted. The JMR directed the Board to provide reasons and bases addressing VA's failure to issue a statement of the case (SOC) following a notice of disagreement (NOD) and to thereafter identify the proper period on appeal. Although the JMR appears to make a factual finding that an NOD was filed in June 2005, the Board is responsible for fact-finding in the first instance. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."); Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) ("[A]ppellate tribunals are not appropriate for initial fact finding.") The Board thus interprets the JMR as directing the Board to address whether a June 2005 document was a NOD such that an SOC was required and, in addition, to determine the relevant period on appeal. Accordingly, the procedural history of this appeal is relevant. In April 2001, the Veteran filed a claim for service connection for the left testicle disability. In a February 2002 rating decision, the RO denied service connection. The Veteran appealed to the Board. In May 2004, the Board remanded the issue for further development. On remand, in a March 2005 rating decision, the RO granted service connection for a left testicle disability, and assigned a 10 percent evaluation, effective in April 2001, the date of the initial claim for service connection. As relevant here, in a June 2005 Statement in Support of Claim, the Veteran stated he requested a reconsideration of the March 2005 rating decision, as he believed that he met the criteria for a higher evaluation based on evidence held at the Orlando, Florida VA facility. The RO obtained those VA medical records dated in 2004 and 2005. The RO also obtained an August 2005 VA genitourinary examination. In an August 2005 rating decision, the RO continued the 10 percent evaluation. The Veteran did not appeal or submit new and material evidence within one year of the rating decision. See 38 C.F.R. § 3.156(b) (noting that a claim remains pending if new and material evidence is received prior to the expiration of the appeal period). Rather, in a September 2005 Statement in Support of Claim, the Veteran filed a claim for an increased evaluation for the left testicle disability. In a March 2006 rating decision, the RO denied the claim. The Veteran did not appeal or submit new and material evidence. See 38 C.F.R. § 3.156(b). In July 2015, the Veteran filed a claim for an increased evaluation, from which this appeal stems. In the 2019 decision, the Board implicitly determined the appeal period began in 2014. As indicated by the JMR, it is the June 2005 statement that is at issue here. Upon review of the statement, the Board concludes that it does not meet the criteria for an NOD. Under the regulations effective in 2005, an NOD is a "written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result[.] While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review." 38 C.F.R. § 20.201 (2005) (emphasis added). Although the regulation does not require precise language, an "NOD must include terms that can be reasonably construed as a desire for appellate review [which] serves administrative efficiency by distinguishing a request for Board review from other routine communications in the wake of a VA decision." Gallegos v. Principi, 283 F.3d 1309, 1314 (2002). "[S]ome indication which reasonable persons can construe as disagreement with a determination by an agency of original jurisdiction and a desire to appeal that determination is at the very heart of what constitutes a Notice of Disagreement. Without such an expression, the communication may be something, but it is not a Notice of Disagreement." See Appeals Regulations; Rules of Practice, 57 Fed. Reg. 4088 (Feb. 13, 1992). In the June 2005 statement, the Veteran merely requested reconsideration of the evaluation assigned by the RO. The Veteran noted that he met the criteria for a higher evaluation based on evidence at a VA medical facility. This request demonstrates dissatisfaction or disagreement with the evaluation, but does not indicate a desire for appellate review, the other essential element of an NOD. Reconsideration by the RO is not provided for in the regulations, but the RO obtained records and a new VA examination and then readjudicated the issue in an August 2005 rating decision. The Board finds that the June 2005 statement was not an NOD, the March 2005 rating decision was not pending, and the RO was under no duty to issue a statement of the case. 38 C.F.R. §§ 19.29, 20.201. Additionally, at that time, the RO was under no duty to clarify with the Veteran whether the request for reconsideration was an NOD. 38 C.F.R. § 19.26(b) (2005). Section 19.26 required that "[w]hen a Notice of Disagreement is received following a multiple-issue determination and it is not clear which issue, or issues, the claimant desires to appeal, clarification sufficient to identify the issue, or issues, being appealed should be requested from the claimant or his or her representative." 38 C.F.R. § 19.26(b) (2005). Clarification was thus only required if the particular issue being appealed was unclear. This was not the case in this appeal; the June 2005 statement clearly identified the issue of an increased evaluation for the left testicle disability. Effective October 30, 2006, the regulation was amended so that if "the AOJ receives a written communication expressing dissatisfaction or disagreement with the adverse decision, but the AOJ cannot clearly identify that communication as expressing an intent to appeal," the AOJ "will" contact the Veteran for clarification of the claimant's intent. 38 C.F.R. § 19.26(b) (2006). However, prior to that date, regulations did not impose such a clarification requirement. Thus, the RO was not under an obligation to attempt to clarify with the Veteran if a statement was an NOD. Accordingly, that March 2005 rating decision was not pending on this basis. Furthermore, the Board finds that no other provisions support an appeal period that begins prior to 2014. As part of the Veteran's request for reconsideration in June 2005, the RO was put on notice of relevant VA treatment records. VA obtained those records and associated them with the claims file. Those records contained relevant evidence and information regarding the severity of the service-connected left testicle disability, and thus, they are new and material. An August 2005 VA examination was also provided, which provided new and material evidence. See 38 C.F.R. § 3.156(b). The RO, however, issued an August 2005 rating decision that included consideration of the VA records and examination. In response, the Veteran did not file a notice of disagreement or submit additional new and material evidence. See 38 C.F.R. § 3.156(b). Rather, in September 2005, he submitted a Statement in Support of Claim. It was noted that this was a Reopen Claim for Service Connection and that one of the issues was "Increased Evaluation for Sc chronic epididymitis, left." This is clearly a claim for an increased evaluation, which was later denied in a March 2006 rating decision. The Veteran did not appeal or submit new and material evidence within one year of that decision. See 38 C.F.R. § 3.156(b). The August 2005 and March 2006 rating decisions are, therefore, final. No claim or informal claim for an increased evaluation was filed in between the March 2006 rating decision and the July 2015 claim for increase. Accordingly, the appeal period begins on July 21, 2014. B. Evaluations A March 2005 rating decision granted service connection for chronic epididymitis, left with bilateral hydroceles and assigned a 10 percent rating from April 10, 2001. An August 2005 rating decision continued the 10 percent evaluation. The decision became final. In July 2015, VA received a claim for increase for left testicle disability. See VA Form 21-526EZ (July 21, 2015). A January 2016 rating decision denied the claim. This appeal arises from the Veteran's disagreement with that decision. The Veteran asserts that he is entitled to a 40 percent evaluation for his left testicle disability. See NOD (January 2016). During the appeal period, which commenced in July 2015 plus the one-year lookback period, the Board concludes that the criteria for a higher rating are not more nearly met. Indeed, the preponderance of the evidence is against finding that the service-connected left testicle disability manifests with recurrent symptomatic infection requiring drainage/frequent hospitalization, continuous intensive management, other voiding or renal dysfunction, or complete testicle atrophy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.115a, Diagnostic Code 7529-7525. Chronic epididymo-orchitis is rated as a urinary tract infection. 38 C.F.R. § 4.115a, Diagnostic Code 7525. Urinary tract infections are assigned a 10 percent evaluation for long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A maximum 30 percent evaluation is assigned for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. If there is poor renal function, the disorder should be rated as renal dysfunction. 38 C.F.R. § 4.115a. In this case, the evidence of record does not demonstrate recurrent symptomatic infections requiring drainage or hospitalization, symptoms requiring continuous intensive management, or any related renal dysfunction. An October 2015 VA examination reflects that the Veteran reported pain that worsened with physical work and that was alleviated by rest; and he denied taking continuous medication, although he did not have long-term drug therapy over the course of the last year. The examiner found that there was no renal dysfunction. An August 2020 VA opinion was obtained. The diagnosis was chronic epididymitis, left, with bilateral hydroceles and left testicular atrophy. Review of records noted the Veteran's complaints were pain with lifting, with no documented complaints or treatment in treatment records for at least 5 years. The examiner found there was testicular atrophy but no renal dysfunction, voiding dysfunction, or erectile dysfunction. September and November 2016 VA records contain complaints of urinary urgency and frequency. A December 2016 VA treatment record noted urinary frequency, most likely caused by his enlarged prostate. The evidence of record thus does not demonstrate symptoms necessary for a higher evaluation. Accordingly, no increased evaluation is for assignment under DC 7525. The Board has fully considered the evidence of record. In a September 2016 VA record, the Veteran reported increased urinary symptoms. In a December 2016 VA record, the Veteran reported urinary frequency. The VA clinician determined that the enlarged prostate was the likely cause of these symptoms. See 38 C.F.R. § 4.115a, Diagnostic Codes 7500-7519, 7528-32). The 2015 VA examiner also noted there was no erectile dysfunction or penile abnormalities, and although the left testicle was smaller than normal, there was not complete atrophy or removal. The 2020 VA examiner also noted there was no erectile dysfunction. See 38 C.F.R. § 4.115a, Diagnostic Codes 7520-24. Prostate gland injuries were not noted to be related to the left testicle disability. 38 C.F.R. § 4.115a, Diagnostic Code 7527. It is noted that to the extent that the Veteran has a voiding dysfunction and/or associated urinary frequency, this is not a basis for a higher rating for his left testicle disability. First, there is not competent, credible evidence of any voiding dysfunction linked to his service-connected left testicle disability. The 2015 and 2020 VA examiners found that there was no urinary or renal dysfunction due to the left testicle disability. Second, urinary frequency is not one of the criteria which is used to evaluate the severity of chronic epididymitis. Also, DC 7525 specifically considers the Veteran's diagnosed disability, chronic epididymitis; and hence consideration of other DCs and ratings by analogy is not permitted. See Copeland v. McDonald, 27 Vet. App. 333 (2015). The Board accepts that the Veteran believes his symptoms warrant a rating in excess of 10 percent. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for higher evaluations than now assigned, as explained and discussed above. Accordingly, the claim is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected left chronic epididymitis with bilateral hydroceles and left testicular atrophy, is remanded. The Veteran contends that his back pain began after an attack of epididymitis during service, and that he has had recurrent low back pain since that time. See VA Examination (December 2001). He also reported back pain when doing physical activities after the in-service epididymitis attack. See VA Form 21-4138 (July 2001). The Veteran also contends that the onset of low back pain was during the same trauma to the left testicle during service, with progressive pain after discharge. See Third Party Correspondence (June 2015). The Board finds remand is warranted in order to obtain clarifying etiological opinions. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In December 2019, the Board remanded this issue. The Board directed that a direct service connection opinion be obtained and that the examiner address a positive June 2015 private nexus opinion, which addressed direct service connection. The Board also requested that secondary service connection opinions be obtained. In February 2020, a VA examiner provided a negative nexus opinion regarding direct service connection, without addressing the 2015 private opinion. Thus, this examination does not comply with the Board remand as it did not address the positive private etiological opinion. Additionally, the examiner deferred the secondary service connection opinion requests to a genitourinary examiner but did not indicate why this was necessary. In August 2020, a VA genitourinary examination was conducted. The examiner stated that since 2015, there was no treatment for epididymitis, noting that the condition was not listed on the chronic problem list. An October 2020 VA medical opinion was obtained. That examiner first opined that the back disability was unrelated to the service-connected left testicle disability, based on pathophysiology and a February 2020 x-ray report without further discussion. Although the examiner provided significant information and review of the claims file, this supporting explanation is conclusory and is not adequate. Next, the examiner opined that the back symptoms were as likely as not due to a condition such as epididymitis or varicocele, but not testicular atrophy. Although this is a positive opinion for symptoms, the August 2020 VA examination appears to have found that the there is no current epididymitis or symptoms, which the examiner did not address. Thus, the opinion lacks an adequate basis. A clarifying opinion is thus required. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2019 to the Present. 2. Schedule the Veteran for a VA examination for a back disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed back disorders. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to the following: (a) Whether the Veteran's back disorder at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease. Consider whether in-service symptoms described by the Veteran, such as back pain during service, at least as likely as not represent the onset of a back disorder in service and indicate whether such symptoms are more likely than not due to other causesexplain. The examiner should address the February 2020 and October 2020 VA opinions and the June 2015 private nexus opinion. (b) Whether the Veteran's back disorder is at least as likely as not (1) proximately due to service-connected chronic left epididymitis with bilateral varicoceles and atrophy of the left testicle, or (2) aggravated beyond its natural progression by service-connected chronic left epididymitis with bilateral varicoceles and atrophy of the left testicle. Provide a rationale that deals with causation and aggravation as independent concepts. Consider and expressly address the August 2020 and October 2020 VA examination report. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. NOTE (3): If any medical history is rejected, a complete explanation is required (e.g., the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop; the Veteran's reports generally inconsistent with medical knowledge or implausible, etc. and fully explain). 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.