Citation Nr: 22008060 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-05 670 DATE: February 11, 2022 ORDER Service connection for a testicular varicose vein condition with epididymal cyst is granted. REMANDED The issue of service connection for a low back condition is remanded. The issue of service connection for sleep apnea is remanded. FINDING OF FACT The Veteran's testicular varicose vein condition with epididymal cyst onset in-service. CONCLUSION OF LAW The criteria to establish service connection for a testicular varicose vein condition with epididymal cyst have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 2010 to September 2010 and from May 2013 to June 2014. The Veteran's combined disability rating is 100 percent, effective February 16, 2021, and he is in receipt of special monthly compensation under 38 U.S.C. 1114, effective July 25, 2017. Service connection for a testicular varicose vein condition with epididymal cyst will be granted because the evidence shows that the condition is related to the Veteran's active service. The issues of service connection for a low back condition and for sleep apnea will be remanded for VA examinations to determine whether he has the disorders due to military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for a testicular varicose vein condition with epididymal cyst is granted. Service connection may be granted for a current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An August 2014 VA medical record shows an ultrasound of the scrotum revealing small hydroceles, small left varicocele, and a tiny right epididymal cyst. During the March 2015 VA male reproductive system conditions examination, the examiner noted a diagnosis of a small left varicocele, small bilateral hydroceles, and a tiny left epididymal cyst, which was confirmed by the August 2014 ultrasound. The Veteran reported onset of symptoms in June 2014. The examiner opined that the condition is related to the Veteran's service because the condition was incurred within one year after his active service. In a November 2018 statement, a fellow servicemember who was stationed with the Veteran at Guantanamo Bay, Cuba reported that the Veteran told him that he found a small bump on one of his testicles and that his testicles bothered him during heavy lifting or jumping while they were stationed together. During the October 2021 Board hearing, the Veteran testified that his varicose vein condition onset in-service while stationed at Guantanamo Bay in 2013/2014 when conducting training exercises. He testified that heavy lifting caused his symptoms to worsen. He testified that the condition has bothered him since then. In conclusion, all three prongs of a service connection claim are met, and the claim of service connection for a testicular varicose vein condition with epididymal cyst, is granted. REASONS FOR REMAND 1. The issue of service connection for a low back condition is remanded. 2. The issue of service connection for sleep apnea is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: This is a remand for the RO to schedule the Veteran for a factually informed and fully explained medical opinion about whether the Veteran's claimed disorders are due to military service. Regarding the issue of service connection for a low back condition, the Veteran's STRs show multiple complaints of back pain in 2013 and 2014. VA medical records show complaints of back pain since October 2014. The March 2015 VA examination shows that the Veteran reported having low back pain since his service at Guantanamo Bay in 2013/2014. November 2018 statements made by fellow servicemembers, who were stationed with the Veteran at Guantanamo Bay, reported that the Veteran told them at the time that he was experiencing back pain. During the October 2021 Board hearing, the Veteran testified that his back pain onset in-service while stationed at Guantanamo Bay and has continued since that time. In October 2021, the Veteran's chiropractor, Dr. J.E.C.R., opined that, based on the history provided by the Veteran, "I can presume that it is probably that [the Veteran's] back pain could be related to his service." The issue is remanded for a FACTUALLY INFORMED AND FULLY EXPLAINED VA examination to determine IF THE VETERAN HAS A LOW BACK CONDIITON, TO INCLUDE PAIN, AS A RESULT OF ACTIVE MILITARY SERVICE, to include the reported 2013/2014 in-service onset of back pain while at Guantanamo Bay, and to address the STRs showing complaints of back pain in-service, complaints of back pain immediately after service, VA medical records showing complaints of back pain since October 2014, the March 2015 VA examination showing complaints of back pain with reported onset in-service, reports of the Veteran and fellow servicemembers that he had low back pain at Guantanamo Bay, and the October 2021 letter from Dr. J.E.C.R. Regarding the issue of service connection for sleep apnea, during the April 2014 report of medical assessment, the examiner noted a chronic sleep issue with symptoms of difficulty falling asleep, snoring, and morning tiredness. A June 2014 VA medical record shows that the Veteran has a high probability for sleep disordered breathing/sleepiness given his answers to the Berlin and Epworth Questionnaires. A September 2014 private sleep study shows a diagnosis of mild obstructive sleep apnea. The results of a November 2014 VA home sleeping test were negative for obstructive sleep apnea. The March 2015 VA examiner noted that the Veteran does not have a diagnosis of sleep apnea. However, the examiner noted that a diagnostic polysomnogram showed two obstructive apneas along with mild snoring. November 2018 statements from fellow servicemembers who were stationed with the Veteran at Guantanamo Bay, reported that the Veteran told them that he had trouble staying awake during the day and trouble staying asleep at night, while they were stationed together. During the October 2021 Board hearing, the Veteran testified that he is always tired, he frequently dozes off, that he awakes frequently at night, and that his spouse has told him that he snores at night. In January 2022, the Veteran's spouse reported that the Veteran is often tired and sleepy during the day. She also reported that the Veteran snores loudly, which causes her to wake up, and that he will gasp for air several times throughout the night. The issue is remanded for a FACTUALLY INFORMED AND FULLY EXPLAINED VA examination to determine WHETHER THE VETERAN HAS SLEEP APNEA that is related to his service, and to address STRs showing a chronic sleep issue and sleep symptoms, VA medical records showing complaints of sleep symptoms, statements made by fellow servicemembers, the Veteran, and his spouse regarding sleep symptoms, and to address the conflicting medical evidence and opinions regarding a diagnosis of sleep apnea. THE REMAND DIRECTIVES FOLLOW. 2. Ensure that all outstanding VA and private treatment records are associated with the claims file. 3. Schedule the Veteran for a VA examination with an appropriate VA examiner TO DETERMINE IF THE VETERAN HAS A LOW BACK CONDITION, TO INCLUDE PAIN THAT RESULTS IN FUNCTIONAL LOSS, AS A RESULT OF ACTIVE MILITARY SERVICE, to include the reported 2013/2014 in-service onset of back pain while at Guantanamo Bay. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record, the examiner MUST respond to the following: (a.) Identify all currently diagnosed low back conditions, to include pain. (b.) Provide an opinion as to whether the Veteran's low back condition, to include pain, is related to his service, to include the reported 2013/2014 in-service onset of back pain while at Guantanamo Bay. (c.) If the examiner determines that the Veteran's only diagnosis is chronic low back pain, the examiner MUST opine as to whether his chronic low back pain is related to his service, to include the reported 2013/2014 in-service onset of back pain while at Guantanamo Bay. (d.) The examiner is ADVISED that an opinion that merely concludes that the Veteran does not have a diagnosed low back condition, aside from pain, IS NOT ADEQUATE. (e.) In providing the requested opinions, the examiner MUST specifically address and discuss the following: STRs showing complaints of back pain in-service, complaints of back pain immediately after service, VA medical records showing complaints of back pain since October 2014, the reports of the Veteran and fellow servicemembers that he had back pain in-service at Guantanamo Bay in 2013/2014, and the October 2021 letter from the Veteran's chiropractor, Dr. J.E.C.R. The examiner is ADVISED that an opinion that does not address and discuss this evidence and all other relevant evidence regarding onset of his condition IS NOT ADEQUATE. (f.) If the examiner determines that the Veteran has a low back condition, to include pain, that is not related to his service, to the extent possible, provide an opinion as to the likely onset of the condition. (g.) THE EXAMINER MUST ALSO EXPRESS AN OPINION OF WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. (h.) The examiner MUST provide a complete and full explanation for the opinions provided. (i.) The examiner is ADVISED that an opinion without a complete and full explanation is not adequate. The examiner's attention is drawn to the following: * August 2013 and January and February 2014 STRs showing complaints of low back pain. * VA medical records showing complaints of low back pain since October 2014. * The March 2015 VA back examination showing that the Veteran reported having lower back pain since his service at Guantanamo Bay. The examiner noted that the Veteran does not have a diagnosed lumbar spine condition and has never had one. * In a November 2018 statement, a fellow servicemember who was stationed with the Veteran at Guantanamo Bay, reported that the Veteran told him that he was experiencing back pain while they were stationed together. * In a November 2018 statement, another fellow servicemember who was stationed with the Veteran at Guantanamo Bay, reported that the Veteran told him that that he was experiencing back pain while they were stationed together. * During the October 2021 Board hearing, the Veteran testified that his low back pain onset in-service while stationed at Guantanamo Bay when conducting training exercises. He testified that he has had low back pain since his service at Guantanamo Bay. * In an October 2021 letter, the Veteran's chiropractor, Dr. J.E.C.R., of approximately six years, stated that the Veteran has complained of back pain throughout the entire course of his treatment. Dr. J.E.C.R., stated that the Veteran informed him of his service at Guantanamo Bay in 2013/2014 when he served as a military policeman. Dr. J.E.C.R., opined that, based on the history provided by the Veteran, "I can presume that it is probably that [the Veteran's] back pain could be related to his service." 4. Schedule the Veteran for a VA examination with an appropriate VA examiner TO DETERMINE IF THE VETERAN HAS SLEEP APNEA AS A RESULT OF ACTIVE MILITARY SERVICE. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record, the examiner MUST respond to the following: (a.) Identify whether the Veteran has a current diagnosis of sleep apnea. The examiner MUST specifically discuss the September 2014 private sleep study showing a diagnosis of mild obstructive sleep apnea. (b.) If the examiner determines that the Veteran does not have a diagnosis of sleep apnea, a COMPLETE AND FULL explanation MUST BE PROVIDED. In this case, the examiner MUST fully reconcile the records showing conflicted opinions and sleep studies regarding a diagnosis of sleep apnea. (c.) Provide an opinion as to whether the Veteran's sleep apnea is related to his service. (d.) In providing the requested opinions, the examiner MUST specifically address and discuss the September 2014 private sleep study showing a diagnosis of sleep apnea, STRs showing sleep symptoms, the reports of fellow servicemembers regarding the Veteran's symptoms in-service, VA medical records showing sleep symptoms post-service, and the reports of the Veteran and his spouse that he has been tired during the day, sleeps during the day, and has snored loudly and has gasped for air at night since his service. The examiner is ADVISED that an opinion that does not address and discuss this and all relevant evidence regarding onset of his condition IS NOT ADEQUATE. (e.) The examiner is FURTHER ADVISED that an opinion that merely relies on any other evaluation in determining that the Veteran does not have a current diagnosis of sleep apnea IS NOT ADEQUATE. (f.) If the examiner determines that the Veteran has sleep apnea that is not related to his service, to the extent possible, provide an opinion as to the likely onset of the condition. (g.) THE EXAMINER MUST ALSO EXPRESS AN OPINION OF WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. (h.) The examiner MUST provide a complete and full explanation for the opinions provided. (i.) The examiner is ADVISED that an opinion without a complete and full explanation is not adequate. The examiner's attention is drawn to the following: * An April 2014 report of medical assessment showing that the Veteran has a chronic sleep issue with symptoms of difficulty falling asleep, snoring, and morning tiredness. * A June 2014 VA medical record showing that the Veteran requested a sleep study. He reported that his spouse complains that he snores loudly. He reported that he feels very tired all the time. The examiner noted that the Veteran has a high probability for sleep disordered breathing/sleepiness given his answers to the Berlin and Epworth Questionnaires. * A September 2014 private sleep study showing a diagnosis of mild obstructive sleep apnea. * The results of a November 2014 VA home sleeping test were negative for obstructive sleep apnea. * The March 2015 VA sleep apnea examiner noted that the Veteran does not have a diagnosis of sleep apnea. The examiner noted in-service complaints of difficulty falling asleep, daytime sleepiness, and nighttime snoring. The examiner noted that a diagnostic polysomnogram showed two obstructive apneas. However, the examiner noted that the results showed no evidence of sleep apnea, although mild snoring was noted. * In a November 2018 statement, a fellow servicemember who was stationed with the Veteran at Guantanamo Bay, reported that the Veteran told him that he had trouble staying awake, and that without caffeine, it would have been impossible for the Veteran to stay awake, while they were stationed together. * In a November 2018 statement, another fellow servicemember who was stationed with the Veteran at Guantanamo Bay, reported that the Veteran had trouble sleeping at night and difficulty staying awake during the day while they were stationed together. * During the October 2021 Board hearing, the Veteran testified that he is always tired, he frequently dozes off, that he awakes frequently at night, and that his spouse has told him that he snores at night. * In a January 2022 statement, the Veteran's spouse reported that the Veteran is often tired and sleepy during the day. She also reported that the Veteran snores loudly, which causes her to wake up, and that he will gasp for air several times throughout the night. The examiner must provide a thorough explanation for the requested opinions. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 5. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case (SSOC), and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.