Citation Nr: 22016371 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-29 356 DATE: March 22, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of hernia repair surgery with right testicular pain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1972 to January 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Cheyenne, Wyoming. The Veteran and his spouse testified at a video conference hearing before the undersigned Veterans Law Judge of the Board in July 2021. A transcript of the hearing has been associated with the claims file. Entitlement to Compensation under 38 U.S.C. § 1151 The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for right testicular pain following hernia surgery performed by a VA provider in February 2017. Specifically, the Veteran indicated that his residuals include pain, interference with sex drive, emotional distress, and fatigue. See e.g. Lay statement, September 3, 2021. The Veteran testified at his July 2021 Board hearing that since his hernia surgery he has experienced symptoms that include pain, difficulty with erections, interference with his sex life and sex drive, interference with his marital relationship, and difficulty with daily activities. See generally Board hearing transcript, July 8, 2021. Of record is a February 2018 private treatment record by Dr. T.C. At that time. Dr. T.C. indicated he had examined the Veteran in September 2017 following the hernia surgery performed by VA for complaints of testicular pain. Dr. T.C. indicated was "not convinced that his [the Veteran's] testicular pain was from genitofemoral nerve entrapment," and referred the Veteran for a urologic consultation. After physical examination, Dr. T.C. opined that he did not think that the Veteran's complaints of pain were caused by entrapment of the genitofemoral nerve, and that the pain and tenderness seemed to be in the testicle itself and not referred. The Veteran was afforded a VA examination in November 2018. At that time, the VA examiner opined that, the postoperative condition had resolved, therefore, there was insufficient clinical evidence to support the diagnosis of a current disability that would be due to the VA treatment at issue. Additionally, the VA examiner opined that, after a review of medical records, the VA personnel met the standard of care in the treatment provided to the Veteran. Moreover, because the postoperative condition had resolved, there was insufficient clinical evidence to support that any current additional diagnosis diagnosed would be due to an event that could not have reasonably been foreseen by a reasonable health care provider, nor due to a failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability in the examiner's opinion. In a July 2019 VA addendum opinion, the VA examiner noted that there was clearly an inconsistency in the reports regarding the Veteran's right testicle and related complaints. The VA examiner found the examination findings were normal and did not document right testicular atrophy. However, the VA examiner noted that medical records document right testicle atrophy. The VA examiner noted that, on examination, the Veteran's right testicle was non-tender but that the Veteran reported continuing right testicular pain; the record showed the Veteran developed such pain after an inguinal hernia surgical repair. The examiner noted that, since the onset of the condition, all of the treatments had been focused on treating a probable entrapment of the nerve in the inguinal canal, the nerves that serve the testicle. The examiner noted that although the records review that the pain in the testicle is a referred pain from a nerve entrapment in the inguinal canal, it is not a primary problem with the right testicle. Therefore, the VA examiner found that based on a review of the medical records, the condition had not resolved due to continued reports of right testicular pain. Additionally, the VA examiner found the evidence did not demonstrate a diagnosis of right testicular atrophy. In a second July 2019 VA addendum opinion, the VA examiner noted that the type of nerve entrapment suspected in the Veteran's circumstances is a known complication related to inguinal hernia repair surgeries; this type of nerve entrapment is not due to the attending VA personnel's failure to follow the appropriate standard of care, not due to an event that could not have reasonably been foreseen by a reasonable health care provider as it is a known complication and no way that medical providers would have been able to foresee this outcome, and that there was insufficient clinical evidence to show that a current disability exists that would be due to a failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability. Of record is an August 2021 private treatment letter completed by Dr. T.C. At that time, Dr. T.C. diagnosed right testicular atrophy and noted that the right testicle was severely tender, with a normal spermatic cord, and with a small palpable hernia on the left side containing fat, with no tenderness. Dr. T.C. assessed right testicular pain of unknown etiology, that had been speculated that his pain was from entrapment of the spermatic cord from his hernia surgery and that this may be the case. However, Dr. T.C. noted that it was very unusual for this to happen after a laparoscopic hernia repair and that he had not seen it previously; Dr. T.C. continued to feel that this pain was in the testicle itself and could be an injury from his surgery resulting in an injury to the testicle. The Board finds the February 2018 and August 2021 private treatment letters by Dr. T.C. incomplete to decide the claim. In this regard, Dr. T.C. did not provide opinions as to whether the Veteran experience any additional disability caused by VA hernia surgery occurring in February 2017; whether any such additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the therapy in question; whether any identified additional disability was an event that was reasonably foreseeable or an event not reasonably foreseeable, to include consideration of the Veteran's contention that his right testicular pain symptoms began immediately following such procedure(s); and whether any identified additional disability was aggravated due to the failure on the part of VA to timely diagnose and/or treat and allow the disability to progress. Additionally, Dr. T.C. seemed to resort to mere speculation that the pain was in the testicle itself, with an "unknown etiology," and did not provide rationale for the conclusions reached. Accordingly, these opinions are afforded little, if any probative weight. The Board also finds the November 2018 VA examination opinion and July 2019 VA addendum opinions incomplete to decide the claims because the examiner, again, did not provide supporting rationale for the conclusions reached nor did they address the lay statements and contentions of the Veteran regarding subsequent complaints of right testicular pain. Of significance, the November 2018 VA examiner found there was no additional disability, and did not adequately address the Veteran's complaints of right testicular pain, erectile dysfunction, lowered sex drive, fatigue, and emotional distress. Rather, the November 2018 VA examiner relied on inaccurate facts, namely, that the postoperative condition had completely resolved. Additionally, the July 2019 VA addendum opinions relied on inaccurate facts, namely, that any additional disability was due to nerve entrapment without right testicular atrophy. Namely, the VA examiner provided mere conclusory statements that the Veteran's impairment was less likely than not as a result of his surgery without further elaboration. Accordingly, these opinions are afforded little, if any probative weight. Where VA provides the Veteran with an examination in a claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board regrets the additional delay, but an adequate VA examination is needed before the Board can render a decision on this issue. Thus, in order to avoid additional remands and avoid the possibility of issuing another inadequate opinion, the VA examiner is requested to comply with the Board's remand directives and only issue the medical opinion specifically requested for each issue and restate the opinion utilizing the exact language specified. As such, remand is again required to obtain additional VA addendum opinions that comply with the Board's prior remand directives. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records and any and all consent forms signed by the Veteran in relation to his February 2017 hernia surgery performed by VA. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain a medical opinion addressing the Veteran's contention that his hernia surgery resulted in additional disability characterized by right testicular pain. Further physical examination is left to the discretion of the examiner. After reviewing the claims file, please answer the following questions: (A) Did the Veteran experience any additional disability caused by VA hernia surgery occurring in February 2017? The examiner is reminded that, to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the medical care or treatment in question to the veteran's condition after such care has stopped. (B) If it is found that additional disability was caused by the VA hernia surgery in February 2017, the examiner should opine as whether any such additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the therapy in question. When making this determination, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (C) If it is found that additional disability was caused by the VA hernia surgery in February 2017, the examiner should also provide an opinion as to whether any identified additional disability was an event that was reasonably foreseeable or an event not reasonably foreseeable, to include consideration of the Veteran's contention that his right testicular pain symptoms began immediately following such procedure(s). That is, was the event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures? (D) If it is found that additional disability was caused by the VA hernia surgery in February 2017, the examiner should also provide an opinion as to whether any identified additional disability was aggravated due to the failure on the part of VA to timely diagnose and/or treat and allow the disability to progress. The examiner should be sure to consider the Veteran's statements that he complained of right testicular pain and interference with sex drive immediately following the procedure. (Continued on the next page) A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate 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 should explain why this is so. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.