BVA9500324 DOCKET NO. 90-29 631 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sterility. 2. Entitlement to service connection for impotence. 3. Entitlement to an extraschedular rating in excess of 10 percent for the postoperative residuals of a left varicocele. 4. Entitlement to special monthly compensation pursuant to 38 U.S.C.A. § 1114(k) (West 1991) based upon the loss of use of a creative organ. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD D.P. Dean, Counsel INTRODUCTION The appellant is a veteran of active service from October 1942 to January 1946. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating determinations by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). By an appellate decision entered in June 1991, the Board denied the appeal as to several issues, including entitlement to a compensable rating for a left varicocele. In March 1992, the United States Court of Veterans Appeals (Court) affirmed the Board's June 1991 decision on all issues except entitlement to a compensable rating for a left varicocele. On motion of VA, the Court remanded that issue for further consideration of the inferred issue of entitlement to special monthly compensation based on loss of use of a creative organ. In July 1992, the Board remanded this appeal to the RO for further development in accordance with the Court's decision. In April 1993, it was necessary for the Board to again remand this case to the RO in order to obtain full compliance with the July 1992 remand. By rating action dated in May 1993, a 10 percent schedular disability rating was granted for the service-connected residuals of a left varicocele, but the veteran continued to appeal for a higher rating. The case was last before the Board in January 1994, when it was again necessary to remand it to the RO in order to develop and adjudicate the newly raised issues of service connection for sterility and impotence, which were felt to be inextricably intertwined with the special monthly compensation issue. REMAND In its January 1994 remand of this appeal, the Board directed that the appellant be afforded a VA genitourinary examination to determine (1) the presence or absence of sterility and/or impotence; and (2) the etiology of these disabilities, if present. Unfortunately, the report of the VA examination of the appellant in April 1994 reflects only a finding of organic impotence. No finding pertaining to the presence or absence of sterility was reported on that examination, nor was an opinion expressed by the examining physician as to the etiology of either sterility (if present) or impotence. As a result of the foregoing unsatisfactory and inadequate examination, the Board has been left with unresolved factual and medical questions concerning the presence of sterility and the relationship between that disability (if present) or the reported impotence to either the September 1943 injury to the appellant reported in the service medical records or the service-connected left varicocele. The Board is not permitted to utilize its own unsupported opinion to resolve these questions. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Moreover, a recent decision by the Court has called into question the legal authority of the Board to utilize medical opinions obtained from its own staff Medical Advisors. Austin v. Brown, 6 Vet.App. 547 (1994). Therefore, the primary source for this essential evidence remains the medical staff of VA Medical Centers, necessitating another remand of this case. In addition, the RO has denied an increased rating for the service-connected residuals of a left varicocele only on a schedular basis, rating the disability by analogy to varicose veins under Diagnostic Code 7120. However, by far the better analogy for rating purposes is reflected by Diagnostic Codes 7523 or 7524 pertaining to atrophy or removal of a testicle, in which a noncompensable evaluation is provided for complete atrophy or removal of one testicle. If chronic pain and swelling is present, there may be an analogy to a tender and painful scar, for which a maximum 10 percent rating is provided under Diagnostic 7804. It is apparent, however, that the only valid basis for assigning a rating in excess of 10 percent for the service-connected left varicocele would be an extraschedular basis. The RO has not yet considered this question. At the time of the April 1994 VA examination, the veteran reportedly claimed that he has been impotent ever since the September 1943 injury to his left testicle in service. He is certainly competent to testify to such a matter. However, information contained in the claims file indicates that he has nevertheless fathered at least four children: James (date of birth unknown); Shirley Ann (born September 20, 1947); Deborah Lee (born December 7, 1954); and Gary David (born October 24, 1959). Obviously, further clarification is needed on this matter, and the Board believes that a sworn and certified statement should be sought from the appellant verifying his best recollection as to the approximate time of onset of impotence. Accordingly, this appeal is hereby remanded to the RO for the following further actions: 1. The RO should request that the appellant submit a sworn and certified statement concerning the approximate time of onset of impotence in view of the fact that he is shown by the evidence to have fathered at least four children through at least 1959. 2. The RO should schedule the appellant for an official medical examination by a specialist in genitourinary medicine (board certified, if available) in order to determine the current nature and severity of the service-connected postoperative residuals of a left varicocele and to verify the presence or absence of sterility, defined for these purposes as the complete absence of spermatozoa. See 38 C.F.R. § 3.350(a)(1)(c) (1993). All necessary and appropriate diagnostic tests and procedures should be undertaken, and the findings reported in detail. The examining physician should also be directed to provide a written opinion, based upon review of the material in the claims file, on the following questions: (a) Is sterility as defined above currently present? (b) If so, is it at least as likely as not that sterility is directly related to either the September 1943 injury to the left testicle or to some other incident in service, or to the service- connected residuals of a left varicocele? (c) Is it at least as likely as not that the currently demonstrated organic impotence is directly related either to the September 1943 injury to the left testicle or to some other incident in service, or to the service-connected residuals of a left varicocele? 3. The RO should next readjudicate the issues currently certified on appeal before the Board based upon a review of all of the relevant evidence. Appropriate consideration should be given to the question of an extraschedular rating for a left varicocele under 38 C.F.R. 3.321(b)(1) (1993). Cf Fisher v. Principi, 4 Vet.App. 57, 60 (1993). If the benefits sought on appeal are not granted to the appellant's satisfaction, a Supplemental Statement of the Case addressing the issues on appeal should be prepared and furnished to the appellant and his representative. They should be provided an opportunity in which to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until he is otherwise notified by the RO. (CONTINUED ON NEXT PAGE) BRUCE E. HYMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).