Entitlement to a compensable rating for residuals of left varicocelectomy is remanded
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Citation Nr: 19186495 Decision Date: 11/19/19 Archive Date: 11/18/19 DOCKET NO. 16-35 166A DATE: November 19, 2019 REMANDED Entitlement to a compensable rating for residuals of left varicocelectomy is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left leg disability, to include radiculopathy, is remanded. Entitlement to service connection for a right leg disability, to include radiculopathy, is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for bacterial rhinitis is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for cervical spondylosis is remanded. Entitlement to service connection for radiculopathy of the left upper extremity is remanded. Entitlement to service connection for radiculopathy of the right upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, inter alia, continued the noncompensable rating for residuals of left varicocelectomy, and denied service connection for erectile dysfunction, a back disability, and left and right leg disabilities. As discussed in the REMAND section below, the Board finds that a timely Notice of Disagreement (NOD) was received on May 14, 2018 with regard to a May 2017 rating decision which, inter alia, denied service connection for allergic rhinitis, bacterial rhinitis, sinusitis, cervical spondylosis, and bilateral radiculopathy of the lower and upper extremities. As a Statement of the Case has not been issued with respect to these claims, the Board is required to remand the matter to the RO for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board has recharacterized the Veteran’s claims of service connection for left and right leg disabilities to include radiculopathy. The Board concludes that lower extremity radiculopathy is encompassed by the claims of entitlement to service connection for left and right leg disabilities, currently before the Board. In light of the remand below, no prejudice to the Veteran has resulted from the Board’s recharacterization of the issues. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In July 2019, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to a compensable rating for residuals of a left varicocelectomy is remanded. The Veteran contends that the residuals of his left varicocelectomy are more severe than currently rated. The Veteran was most recently afforded a VA examination in December 2012 to determine the severity of the residuals of his left varicocelectomy. At his July 2019 travel Board hearing, the Veteran testified that the residuals of his left varicocelectomy had worsened since he was last examined for VA compensation purposes. He indicated that he experienced considerable pain in his groin area and numbness in his leg. He also testified that he had begun to experience continence issues and that physicians had been unable to discern whether this was due to nerve damage caused by the varicocelectomy. As such, upon remand, the Veteran should be afforded a new VA examination to assess the current severity of the residuals of his left varicocelectomy. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that his erectile dysfunction is secondary to his service-connected residuals of left varicocelectomy. The Veteran was most recently afforded a VA examination in December 2012. The examiner noted a diagnosis of erectile dysfunction and the Veteran’s report that he experienced erectile dysfunction for “many years.” After examination of the Veteran and review of the claims file, the examiner determined that the Veteran’s erectile dysfunction was not caused by his service-connected residuals of left varicocelectomy. The examiner opined, [The Veteran] is having erectile dysfunction by history is not due to s/p varicocelectomy and herniorrhaphy as they are not one of the cause[s] of erectile dysfunction. The Board finds that this examination is inadequate. Although the examiner addressed whether the Veteran’s erectile dysfunction was causally related to his service-connected residuals of left varicocelectomy, he did not provide a rationale for that conclusion nor did he address the question of aggravation. As such, an addendum medical opinion is warranted. 3. Entitlement to service connection for a back disability is remanded. The Veteran contends that he injured his back while he was serving aboard the USS Saratoga. He asserts that while he was working in a “trunk,” a doggy wrench fell from above, hit his head and knocked him out, and caused him to fall 2 decks. See July 11, 2019 Transcript of Hearing, pages 7-10. The Veteran’s October 1965 enlistment examination noted “arthritis-joints[,] see letter” and “letter reviewed.” Review of the claims file reveals that the letter referenced in the enlistment examination is not included in the Veteran’s service treatment records. Additionally, the Veteran testified at the July 2019 Board hearing, referenced above, that treatment notes regarding his in-service fall and visit to sick bay, as well as records pertaining to a 45-day hospitalization for an unrelated infection while he was aboard the USS Saratoga, were also missing from his service treatment records. As such, the Board finds that efforts should be made to obtain the Veteran’s complete service treatment records. Additionally, during the July 2019 Board hearing, the Veteran reported receiving treatment at the Allen Park VAMC. A review of the claims file reveals that the records from this facility have not been associated with the claims file. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Given the Veteran’s assertions, a remand is warranted to enable the RO to undertake the appropriate efforts to obtain the outstanding VA records. Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (holding that VA’s duty to assist in obtaining records is triggered if the claimant identifies VA medical records; the claimant is not required to show that VA records are relevant). 4. Entitlement to service connection for a left leg disability, to include radiculopathy, is remanded. 5. Entitlement to service connection for a right leg disability, to include radiculopathy, is remanded. The Veteran contends that his left and right leg disabilities are secondary to his back disability. See July 11, 2019 Transcript of Hearing, page 24. As resolution of the claim of entitlement to service connection for a back disability may have an impact on the Veteran’s claims of entitlement to service connection for left and right leg disabilities, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). 6. Entitlement to service connection for allergic rhinitis is remanded. 7. Entitlement to service connection for bacterial rhinitis is remanded. 8. Entitlement to service connection for sinusitis is remanded. 9. Entitlement to service connection for cervical spondylosis is remanded. 10. Entitlement to service connection for radiculopathy of the left upper extremity is remanded. 11. Entitlement to service connection for radiculopathy of the right upper extremity is remanded. A review of the record indicates that the Veteran’s original claims of service connection for allergic rhinitis, bacterial rhinitis, sinusitis, cervical spondylosis, and bilateral radiculopathy of the lower and upper extremities were denied by the RO in a May 2017 rating decision. The Veteran was notified of the RO’s decision in a letter dated May 17, 2017. On May 14, 2018, the Veteran’s attorney faxed VA Form 21-0958 Notice of Disagreement to the VA Claims Intake Center, as well as a cover letter and VA Form 21-22a. A facsimile transmission report confirms receipt of the fax by the VA Claims Intake Center on May 14, 2018. See AutoReply Facsimile Transmission. In correspondence dated June 26, 2018, VA notified the Veteran that a letter which had been received on June 7, 2018 was untimely and therefore could not be accepted as a NOD. On July 6, 2018, the Veteran’s attorney submitted a request for reconsideration of the rejection of the NOD, which was received by VA on July 10, 2018. In correspondence dated July 17, 2018, VA informed the Veteran that correspondence had been received indicating that the Veteran would like to file a NOD, however, before processing could begin, a VA Form 21-0958 needed to be completed and returned within 1 year of the date of the decision notice he intended to appeal. Based on the factual history above, the Board finds that the VA Claims Intake Center did receive a timely NOD to the May 2017 rating decision. As a Statement of the Case has not been issued with respect to these claims, the Board is required to remand this matter to the RO for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the matters are REMANDED for the following action: 1. Undertake the appropriate efforts to obtain any potentially missing service treatment records. If missing service treatment records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain any missing service treatment records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. 2. Obtain VA treatment records from the Allen Park VAMC, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 3. Schedule the Veteran for a VA examination to address the current severity of his service-connected residuals of left varicocelectomy. All necessary tests should be conducted and all findings reported in detail. The examination report should identify all symptoms and pathology associated with the service-connected residuals of left varicocelectomy. In providing the requested opinion, the examiner should consider the relevant evidence of record, to include the February 2017 medical report from Dr. Craig Bash. 4. Obtain an addendum medical opinion to determine the nature and etiology of the Veteran’s current erectile dysfunction. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the opinion. After reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: (a) Is it at least as likely as not that the Veteran’s current erectile dysfunction had its inception during his period of active duty or is otherwise causally related to an in-service disease or injury? (b) If not, is it at least as likely as not that the Veteran’s current erectile dysfunction is caused by his service-connected residuals of left varicocelectomy? (c) If not, is it at least as likely as not that the Veteran’s current erectile dysfunction is aggravated by his service-connected residuals of left varicocelectomy? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should reference any relevant evidence of record, to include the Veteran’s service treatment records, VA medical records, and the Veteran’s July 2019 hearing testimony which indicated that he experienced an episode of erectile dysfunction during active duty. 5. Issue an appropriate Statement of the Case addressing the claims of service connection for allergic rhinitis, bacterial rhinitis, sinusitis, cervical spondylosis, and radiculopathy of the left and right upper extremities. The Veteran and his attorney should be advised of the time afforded for perfecting an appeal in this matter, and given opportunity to do so. If that occurs, these matters should also be returned to the Board for appellate review. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.