Citation Nr: 21031962 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-51 619 DATE: May 25, 2021 REMANDED Entitlement to compensation for loss of the right testicle as result of hernia surgery under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to November 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior decision on this claim in May 2019. However, following an appeal to the United States Court for Appeals for Veterans Claims, in April 2020 a Joint Motion for Partial Remand (Joint Motion) was entered, vacating portions of the Board's May 2019 decision. The Board has issued two prior remands on this claim in July 2020 and February 2021. 1. Entitlement to compensation for loss of the right testicle as result of hernia surgery under 38 U.S.C. § 1151 is remanded. Although the Board regrets the delay, another medical opinion from a urologist or similarly qualified genitourinary specialist is needed to comply with the July 2020 and February 2021 Board remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). The July 2020 Board remand instructed the RO to obtain a genitourinary medical opinion from a urologist if possible. For the medical opinions, the remand instructed the medical specialist to review the claims folder and opine on both (a) the fault element in furnishing care surrounding the October 2016 inguinal hernia surgery and (b) the foreseeability element about the postoperative complications. See 38 U.S.C. § 1151. The medical specialist was also instructed to specifically consider the Veteran's handwritten November 30, 2016 note about his conversation with the VA surgeon and a complete copy of the October 2016 surgical consent form. The RO obtained an October 2020 medical opinion from a physician practicing in internal medicine. The physician did not directly address the 38 U.S.C. § 1151 fault element and the portions of the Veteran's November 30, 2016 letter suggestive of fault by the VA surgeon. He only addressed whether the postoperative complications were reasonably foreseeable. Therefore, the Board again remanded the claim in February 2021 again asking for an opinion from a "urologist or similarly qualified genitourinary specialist." In March 2021 another opinion was uploaded into the Veteran's electronic file, this time from a physician who specializes in emergency medicine. On a separate form under "About your examiner" it is noted that the examiners board certification is in emergency medicine and he has compensation and pension related training in "traumatic brain injury, MST, medical opinion, musculoskeletal, aggravated opinion, Gulf War examination, general trained, MST trained." The Board notes that none of this information points to any specialization in either urology or genitourinary. The Board also notes that the Veteran provided additional correspondence in support of his claim in March 2021. This evidence will also be considered on remand. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Contact a urologist or similarly qualified genitourinary specialist for a medical opinion under 38 U.S.C. § 1151. The specialist must conduct a complete review of the claims folder. Following a complete review of the claims folder, the specialist must opine as to the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or more probability) that the Veteran's additional disability of loss of the right testicle was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part or VA's failure to exercise the degree of care that would be expected of a reasonable health care provider. (b.) Whether it is at least as likely as not that any additional disability, to include the loss of the right testicle, was due to an event not reasonably foreseeable. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not find to be an ordinary risk of the treatment or lack of treatment. The specialist should clearly explain and discuss the medical evidence and the medical principles involved for any opinions expressed. With regards to (a), the specialist must consider the Veteran's handwritten note dated November 30, 2016 indicating that the surgeon who performed the inguinal hernia repair surgery was not aware of the Veteran's prior history of inguinal hernia repair surgery and that the Veteran's testicular ischemia was misdiagnosed, as well as the Veteran's correspondence and marked up medical documentation received into the electronic file on March 2, 2021. Furthermore, based on the November 30, 2016 VA treatment note by the performing surgeon, the specialist should comment on whether the Veteran's prior history of inguinal hernia repair increased the risk of testicular complications, and in particular, testicular ischemia. Finally, with regards to (b), the specialist should consider the full October 2016 signed consent document uploaded to the electronic record in January 2020. All opinions expressed must be accompanied by a complete rationale. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.