Citation Nr: 22012837 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 15-42 150 DATE: March 7, 2022 ORDER The appeal to reconsider the claim for entitlement to service connection for residuals of right testicular surgery is granted. The appeal to reconsider the claim for entitlement to service connection for a head injury is granted. The appeal to reconsider the claim for entitlement to service connection for a back disability is granted. Entitlement to service connection for a lung disability is denied. REMAND Entitlement to service entitlement to service connection for residuals of right testicular surgery is remanded. Entitlement to service connection for a head injury is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. Since the March 1977 final denial, new and relevant service department records have been added to the claims file that were not, for any reason, otherwise unobtainable. 2. Since the March 1977 final denial, new and relevant service department records have been added to the claims file that were not, for any reason, otherwise unobtainable. 3. Since the June 1981 final denial, new and relevant service department records have been added to the claims file that were not, for any reason, otherwise unobtainable. 4. The evidence of record is against finding that the Veteran's lung disability occurred in, or is the result of, his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for reconsideration of the claim for entitlement to service connection for residuals of right testicular surgery are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(c), 19.20, 19.21, 19.52(a). 2. The criteria for reconsideration of the claim for entitlement to service connection for a head injury are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(c), 19.20, 19.21, 19.52(a). 3. The criteria for reconsideration of the claim for entitlement to service connection for a back disability are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(c), 19.20, 19.21, 19.52(a). 4. The criteria for entitlement to service connection for a lung disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.309(d), 3.311(a)(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a June 2020 Decision, the Board remanded all these claims so that the agency of original jurisdiction (AOJ) could make attempts to obtain the Veteran's entire military personnel file. Specifically, it noted that while "it is clear the Veteran performed active duty service in Germany, sometime around November 1975, based on his service treatment records [STRs], he contends that he was stationed in Italy and Greece as well. However, there is no evidence on file to support or contradict the Veteran's assertions." Because the Veteran was claiming involvement in a motor vehicle accident while in Italy, the AOJ needed to obtain his military records. In December 2020, the Veteran's STRs and military personnel records (MPRs) were uploaded to the claims file. Thus, the Board is satisfied that the AOJ substantially has complied with its prior remand directives, permitting readjudication. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1380 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Reconsideration Ordinarily, claims previously denied by a final decisioneither by a RO or the Boardrequire the submission of new and material evidence before that previously denied claim can be reopened and readjudicated. 38 C.F.R. § 3.156(a). There are, however, exceptions to this general rule, one of which applies to this appeal. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant, official STRs that existed and had not been associated with the claims file when VA first decided the claim, then VA will reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1). This exception, however, does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). 1. The appeal to reconsider the claim for entitlement to service connection for residuals of right testicular surgery is granted. This claim first was denied in a March 1977 Rating Decision. At the time, it appears that the only evidence available to the RO was excerpts from the Veteran's STRs, documenting a May 1976 surgery on his undescended right testicle and a post-service December 1976 VA examination. In denying the Veteran's claim, the RO stated that postoperative "removal of the [right] congenital undescended [right] testicle shown to be remedial without aggravation during service." (Emphasis added). It is clear from the RO's original denial that there was a congenital disability upon entry into service. Thus, the Board must discuss the pertinent laws and regulations. VA's Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested in or was aggravated by service). See VAOPGCPREC 82-90 (July 18, 1990), VAOPGCPREC 67-90 (July 18, 1990). A defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at ¶. 2. "Congenital or developmental defects" automatically rebut the presumption of soundness and, therefore, are considered to have preexisted service. 38 C.F.R. §§ 3.303 (c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. Service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Terry v. Principi, 340 F.3d 1378, 138384 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). A congenital defect, however, can still be subject to a superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. If a Veteran suffers from a congenital disease, as opposed to a defect, VA simply cannot assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin v. Shinseki, 22 Vet. App. 390, 39697 (2009). If the presumption of soundness at entrance attaches, then VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe, 4 Vet. App. at 515. In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that, in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted and, if so, whether there was aggravation during service. Id. at 395. "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004) A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted; an indication of past disorder or disability by a veteran on a report of medical history is not enough to prevent the presumption of soundness from attaching. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). If the Veteran is sound upon entry, the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any 'increase in disability [was] due to the natural progress of the' preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F. 3d at 1096 (citing 38 C.F.R. § 3.322). Because of the nature of the analysis of a claim involving congenital defects and diseases, as well as the presumption of soundness and aggravation, a Veteran's entire service medical file is relevant, as the Board needs to examine both the entrance examination (to determine if a preexisting disability indeed was noted) as well as all other STR entries for potential aggravation. Thus, because the Veteran's STRs were associated with the claims file after the March 1977 final denial, and because there is no indication that they previously were unavailable or that the Veteran failed to cooperate by supplying pertinent information leading to their retrieval, the Board finds that the reconsideration of this claim on a de novo basis is required without the need for new and material evidence. See 38 C.F.R. § 3.156(c)(1)(2). 2. The appeal to reconsider the claim for entitlement to service connection for a head injury and a back disability is granted. The claim for the Veteran's head injury likewise was denied in the March 1977 Rating Decision, but the back claim was denied in a June 1981 Board Decision. As it pertains to both, the Veteran alleges that he was involved in a motor vehicle accident while stationed in Italy, which resulted in his injuries. As noted above, the Board highlighted that there were no MPRs associated with the Veteran's claims file. Since the previous remand, the MPRs have been obtained and verify that the Veteran served in Italy during 1975just as he alleges. Thus, the Board finds that the service department records are new and relevant and not previously unobtainable for any reason. The Veteran, therefore, also is entitled to reconsideration of these claims on a de novo basis as if the prior decisions were not rendered. See id. Service Connection For this claim, the Veteran alleges that he was exposed to radiation while working as a Sergeant Missile Repair Crewman; he also claims that the mask he was provided had holes, which caused him breathing problems. Aug. 20, 2012, VA Form 21-4138. He further posits that he was thrown into chemical water waste while on duty in Crete, Greece, where the last missile was fired in the Mediterranean Sea. Id. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). There are specific diseases that may be presumptively service connected if it manifests in a radiation-exposed Veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A radiation-exposed veteran is one who participated in a radiation-risk activity. Radiation-risk activity further is defined by specific events and occupations. 38 C.F.R. § 3.309(d)(3)(ii)(A)(E). In applying this presumption, there is no requirement for documenting the level of radiation exposure. If the presumption does not apply, and if a veteran has a radiogenic disease and contends the disease is a result of ionizing radiation, then an assessment will be made as to the size and nature of the radiation or radiation doses. 38 C.F.R. § 3.311(a)(1). For claims based on participation in atmospheric nuclear testing or in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946, does data will be requested from the Department of Defense (DOD). 38 C.F.R. §§ 3.311(a)(2)(i)(ii). For claims based on any other exposure to ionizing radiation, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include, but may not be limited to, the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records, which may contain information pertaining to the veteran's radiation does in service. 38 C.F.R. § 3.311(a)(2)(iii). All such records will be forwarded to the Under Secretary for Health, who will prepare a dose estimate, to the extent feasible. When it has been determined that: (1) a veteran has been exposed to ionizing radiation; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits (USB) for further consideration in accordance with Subsection (c); however, if any of the three requirements are not met, then it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances. 38 C.F.R. § 3.311(b)(1). Once the claim is forward to the USB, he or she shall consider the claim with reference to the factors specified in paragraph (e) and may request and advisory medical opinion from the USH. 38 C.F.R. § 3.311(c)(1). Subsection (e) lists the following factors: (1) the probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation; (2) The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology; (3) The veteran's gender and pertinent family history; (4) The veteran's age at time of exposure; (5) The time-lapse between exposure and onset of the disease; and (6) the extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease. 38 C.F.R. § 3.311(e). If the USB determines there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, then he or she shall so inform the regional office of jurisdiction in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1)(ii). Direct service connection also can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). STRs do not show complaints of, treatment for, or diagnosis of any lung disability. The Veteran's military personnel records (MPRs) show that he served in Italy from February 10, 1975, to September 14, 1975, and in Germany from September 15, 1975, to June 23, 1976. During those times, he worked as a Sergeant Missile Crewman. The records show that those were the only foreign locations in which the Veteran served. Post-service VAMC records from February 2012 show that a CT scan was performed for surveillance of a pulmonary nodule. An April 2012 x-ray showed a 5-millimeter (mm) nodule on the right middle lung and a 6mm nodule on the right lower lung. By August, the Veteran was feeling well without complaint; his chest was clear, but he was smoking eight cigarettes per day. The right, middle nodule appeared smaller. In January 2013, VA requested the Veteran's DD-1141 and records pertaining to exposure to radiation. In June 2013 it was told that there were no documents showing any exposure to radiation. In January 2013, the Veteran completed and submitted a VA Radiation Risk Activity Information Sheet (Form RRAIS). There, he alleged exposure to radiation in Ft. Sill, Oklahoma, Germany, Italy, and Greece. He asserts that he was in the open when missiles detonated, moving toward ground zero after various explosions and remaining in the initial explosion area for hours. An October 2013 VAMC entry verifies that there were no appreciable changes in the nodules since March 2011. By September 2019, it was noted that, due to the nodules, if the Veteran has risk factors for lung carcinoma, then he should consider a follow-up CT scan of the chest without contrast. The Board recognizes that the Veteran has nodules on his right lung. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The Veteran has neither a diagnosed disease specific to radiation-exposed veterans, see 3.309(d)(2), nor a diagnosed radiogenic disease, see 38 C.F.R. § 3.311(b)(2); therefore, presumptive service connection for exposure to ionizing radiation is not warranted in this appeal. That, however, does not preclude the Veteran from establishing service connection on a direct basis, so the Board will proceed with that analysis. See Combee, 34 F.3d at 1043. Turning to the second element of direct service connection, the Board finds that the evidence of record is insufficient. The Veteran claims that he was exposed to ionizing radiation in the atmosphere while stationed in Oklahoma, Italy, and Germany, as well as water after nuclear testing in Greece. See Jan. 31, 2013, VA Form RRAIS; Aug. 20, 2012, VA Form 21-4138. The Board finds these assertions are not credible. The governments of the United States of America, United Kingdom, and former Union of Soviet Socialist Republics ratified on October 10, 1963, the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water. See 14 U.S.T. 1313 (1963). In pertinent part, those countries agreed to undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (a) in the atmosphere; beyond its limits, including outer space; or underwater, including territorial waters or high seas; or (b) in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted. Id. at 1317. At the very same time the Veteran alleges that he was exposed to radiation from the testing of nuclear weapons, the United States had already bound itself to an international agreement with two other countries, prohibiting the very same conduct he alleges to have occurred. Furthermore, the AOJ attempted to obtain the Veteran's DD-1141 and other radiation-related documents. It was informed that no such records exist. This further confirms that the Veteran did not engage in work that exposed him to ionizing radiation. Thus, the Board does not find that the Veteran suffered an in-service injury or disease, so the second element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). REASONS FOR REMAND If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge (VLJ) shall remand the case to the AOJ, specifying the action to be undertaken. 38 C.F.R. § 20.904(a). 3. Entitlement to service connection for residuals of right testicular surgery is remanded. In May 2021, the AOJ supplied the Veteran with an examination for this claim. The report notes a diagnosis of post-operative residuals to include scarring and pain. The examiner stated the following: After a review of the medical and scientific evidence in the e-file, the [Veteran's] claimed right inguinal testicular condition of postoperative residuals of removal [o]f an undescended testicle with scarring is less likely as not the result of the veteran's service or injury while in service. The [V]eteran had surgery for a congenital condition that was not due to service and is not service connected for it. There is no medical or scientific evidence linking an in-service condition to his current condition today. The [Veteran's] left testicle was noted as normal on the operative report 4/15/1976. He had (non-service related) hernia surgery in 2008 that is more likely than not the cause of his left undescended left testicle. Unfortunately, without any further evidence the veterans claim cannot be supported at this time. (Emphasis added). As noted from the pertinent law cited above, the threshold question presented to the Board is whether the Veteran's right testicular disability was a congenital defect or disease. The relevant medical examiners only ever list it as a "congenital condition," but "condition" does not assist the Board. It first must know whether the Veteran's congenital condition is a defect or disease. If the former, service connection is precluded and compensation can be provided only for a superimposed injury or disease, see VAOPGCPREC 82-90; if the latter, then the Board must analyze whether the presumptions of soundness and aggravation apply. A review of the STRs does not show any documented testicular condition at the time of entry into service. Thus, the Veteran is presumed sound as to any undescended right testicle condition (assuming that the condition is a disease and not a defect). See 38 U.S.C. § 1111; Wagner, 370 F. 3d at 1096; 38 C.F.R. § 3.304(b)(1). That, however, does not end the inquiry. The burden then would shift to VA to rebut the presumption, which, as described above, requires clear and unmistakable evidence showing a preexisting condition and a lack of in-service aggravation (except for any natural disease progression). The Board cannot rely on the mere fact that the Veteran's testicular condition has been described as "congenital" to show that it preexisted service; an undocumented, congenital disease at entrance into service still qualifies for the presumption of soundness and requires clear and unmistakable evidence to rebut that presumption. See Quirin, 22 Vet. App. at 39697; Monroe, 4 Vet. App. at 515. Thus, there are multiple medical questions that need answering before the Board may proceed: Is the Veteran's condition a congenital defect or disease? If the former, then is there any superimposed disability that has developed? If the latter, then is there clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated beyond its natural progression during service? Therefore, remand is required to secure an addendum opinion to answer these. 4. Entitlement to service connection for a head injury, cervical spine disability, and lumbar spine disability is remanded. The Veteran previously had a Board hearing for his back claim. He testified that he was in a collision with a motorcycle; at first, he was treated at an Italian civilian hospital and later transferred to a military hospital. Dec. 30, 1980, Hr'g Tr. (Tr) at 3. In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159(c)(3). VA's duty to assist includes assisting the claimant in the procurement of relevant records in the custody of federal agencies. 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(2). This duty ends only where the records either are obtained or it is determined that such records do not exist or that further efforts to obtain them would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). As discussed above, the Veteran's MPRs verify that he served in Italy in 1975. He has indicated that he was treated at a military hospital; such records automatically may not be associated with the Veteran's claims file. There is no indication that VA has made any attempts to obtain any records from Italian military or civilian hospitals that would or could have treated him. Thus, remand is required to attempt to obtain these records. See 38 C.F.R. §§ 3.159(c)(2), 20.904(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Conduct the necessary research of civilian or military hospitals to obtain treatment records for the Veteran's alleged motor vehicle accident while he was stationed in Italy from February 10, 1975, to September 14, 1975. 3. If, after reasonable attempts have been made, any identified records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 4. Conduct any additional development deemed necessary for the claims of service connection for a head injury, cervical spine disability, and lumbar spine disability. 5. Obtain an addendum medical opinion. The opinion shall answer the following: (a.) Prior to his in-service surgery, was the Veteran's right testicular condition a congenital defect or a congenital disease? VA defines a congenital defect as one that is more or less stationary in nature, while a disease is capable of improving or deteriorating. (b.) If the condition was a congenital defect, then is it at least as likely as not (a fifty percent probability or greater) that there was any superimposed disease or injury upon that congenital defect? (c.) If the condition was a congenital disease, then is it at least as likely as not (a fifty percent probability or greater) that the congenital disease clearly and unmistakably (i) preexisted the Veteran's entry into service and (ii) was not aggravated beyond natural progression during the Veteran's period of service? (d.) If the condition was a congenital disease and the examiner determines that the disease clearly and unmistakably either (i) did not preexist service or (ii) was aggravated by service beyond the disease's natural progression, then is it at least as likely as not (a fifty percent probability or greater) that the Veteran's testicular pain and scarring occurred in, or is the result of, his period of active duty service? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.