BVA9503254 DOCKET NO. 92-03 058 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for defective hearing. 2. Entitlement to service connection for hypertension. 3. Entitlement to a compensable rating for atrophy of the right testicle. 4. Entitlement to a compensable rating for postoperative scars, residuals of bilateral subcutaneous mastectomies due to fibroadenoma. 5. Entitlement to special monthly compensation based on loss of use of a creative organ. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from December 1943 to April 1946. This matter is before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of August 1990, October 1991 and January 1992 by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded to the RO on October 2, 1992, for additional evidentiary development and adjudication. At the time of the remand, the issue of entitlement to a compensable rating for postoperative mastectomy scars was not in appellate status since an appeal regarding that matter had not been perfected through submission of a substantive appeal. A VA Form 1-9 (Appeal to Board of Veterans' Appeals) was thereafter received in January 1993; therefore, this issue is properly before the Board. REMAND The development requested by the Board with respect to defective hearing consisted of a special audiological examination to include an opinion as to whether any current hearing deficit was related to claimed acoustic trauma in service. Audiometric studies performed in January 1994 disclosed a hearing deficit of service connectable degree under 38 C.F.R. § 3.385 (1993), but no opinion as to its etiology was included. Where a medical opinion requested by the VA has not been rendered, the claim must be remanded. Smith v. Brown, 5 Vet.App. 335, 340 (1993). A supplemental statement of the case prepared in May 1994 indicates that the prior denial of service connection for defective hearing was thereafter confirmed and continued by a rating board on April 14, 1994, but the rating sheet itself was not included in the file. As a justification for the denial it was asserted that: "nor is the hearing loss now shown in the veteran's left ear of the sensorineural type, and therefore, is not due acoustic trauma". Since no authority is shown in the record, the conclusion evidently reflects reliance on some outside source of medical expertise which has not been cited. Such an analysis was precluded by the United States Court of Veterans Appeals (the Court) in Colvin v. Derwinski, 1 Vet.App. 171 (1991). The use of independent medical judgment cannot serve as a substitute for a competent medical opinion in the written record. With respect to atrophy of the right testicle, the evidentiary development performed pursuant to the remand consisted of procurement of additional outpatient records and physical examinations (urology examinations in August 1983 and January 1994 and a general surgery examination in February 1994). The examination reports were inconclusive as to the status of the right testicle. The August 1993 urology examination noted that the veteran had a "probable atrophic undescended or entrapped testicle". The February 1994 surgical examination observed that the right testicle was "probably" undescended and had undergone atrophy over the years, as it had not been seen on a December 1993 ultrasound. None of the examinations conformed to the requirements of the VA Physician's Guide for Disability Evaluation Examinations (Physician's Guide) (IB 11-56, March 1, 1985). It appears from the Request for Physical Examination (VA Form 21-2507) that the claims file may have been available to the examiners, but there is no indication that it was actually reviewed inasmuch as it was not cited in any of the examination reports, all of which were brief. Again, the specific questions posed in the remand were not answered. As noted above, when an opinion has not been received pursuant to a specific request, the appeal must be remanded. Smith, 5 Vet.App. at 340. According to the May 1994 supplemental statement of the case, the rating board on April 14, 1994, proposed that service connection for atrophy of the right testicle be severed. Further action on the increased rating and special monthly compensation issues was deferred, pending completion of the severance. The reason for deferring these determinations is not apparent since, even if a final severance is implemented, the effective date of reduction or discontinuation of the award will be the last day of the month in which a 60-day notice to the veteran expires; the veteran is therefore potentially entitled to both special monthly compensation and a higher rating until that date. Presumably, it has been found by the rating board that the veteran's testicular atrophy is congenital or developmental in origin or is due to some etiology other than the herniorrhaphy in service. In order for the severance to be sustained on appeal, however, such a finding must be based on clear and unmistakable evidence rather than mere probability. 38 C.F.R. § 3.105(d) (1993). If the RO chooses to proceed with final severance, if it has not already done so, the determination will be subject to the requirement stated in Colvin, 1 Vet.App. 171, that its medical basis be documented in the written record. The veteran has also appealed the denial of a compensable rating for residuals of bilateral mastectomies, performed in service due to fibroadenoma, which are now rated under Diagnostic Code 7805 of the rating schedule, which pertains to scars. The rating was based on a cursory surgical examination in December 1991. However, it is not possible from the examination report to adequately evaluate contentions by the veteran at his hearing that extensive scarring from the procedures causes pain and pulling on motion of the arms. A more thorough examination should be performed in accordance with the VA Physician's Guide. In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should locate the original rating sheet prepared on April 14, 1994, if available, and place it in the claims file in its correct place in chronological sequence. 2. All VA outpatient treatment records dated since 1991 should be obtained for the record. 3. The veteran should undergo a special audiological examination in accordance with the requirements of the VA Physician's Guide. All indicated tests and studies should be performed, and all findings should be reported in detail. The audiologist should take a thorough history from the veteran and review the claims file carefully. On the basis of both historical information and current audiometric findings, an opinion should be expressed as to whether any current hearing deficit is related to the alleged acoustic trauma in service. 4. The veteran should undergo further special examinations by a urologist and a surgeon to clarify the nature and status of the service-connected right groin disability. The examinations should conform to the requirements of the VA Physician's Guide. The surgical examination should include an opinion as to the etiology of the veteran's right groin pain. The examiners should review the record and express a conclusion with respect to the following: (a) was the veteran's right testicle surgically removed in service, or does it remain in the scrotum in an atrophied condition?; (b) if it was not removed, is the testicle atrophied as the result of the herniorrhaphy in service or is it merely an undescended testicle of congenital or developmental origin?; (c) if the testicle is present but constitutes an undescended testicle of congenital or development origin, was it affected by the herniorrhaphy in service (see service medical records), or is it entrapped by residuals of such surgery? If the atrophy is found to be the result of surgery in service, or residuals of the surgery in service, the extent of atrophy should be determined in terms of the standards set forth in 38 C.F.R. § 3.350(a)(1) (1993); specifically, it should be indicated whether the "diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle", or whether the "diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle". The examiners may order any additional studies deemed necessary; if possible, they should confer with each other and correlate their findings. It is imperative that the claims file be made available to the examiners in advance. 5. The veteran should undergo a special surgical examination to ascertain the nature and severity of residuals of bilateral mastectomies due to fibroadenoma. The examination should conform to the requirements of the VA Physician's Guide. All indicated tests and studies should be conducted, and all findings should be reported in detail. The examiner should specifically note the extent of any impairment of function of musculoskeletal structures, and any objective indications of pain should be described. The claims file should be made available to the examiner in advance. 6. After completion of the foregoing, the RO should review the reports of the foregoing examinations for compliance with the specifications set forth herein. If necessary, referrals for further examinations should be ordered until the requisite information has been obtained. Thereafter, the RO should review the issues on appeal. With respect to the herniorrhaphy residuals, the RO should assign a rating which reflects consideration of the claim for increase under Diagnostic Code 7338 as well as 7523, and consideration should be given to assigning a separate rating for testicular atrophy if medically determined to be a residual of the herniorrhaphy. If service connection is established therefor and the atrophy of the right testicle is found to meet the specifications in 38 C.F.R. § 3.350(a)(1), an award of special monthly compensation based on loss of use of a creative organ must be granted for the appropriate period of time, regardless of whether service connection has been or is subsequently severed. If the decision remains adverse to the veteran, in whole or in part, a supplemental statement of the case should be prepared and the veteran and his representative should be given a reasonable period of time for reply. Thereafter, the claim should be returned to the Board for further review, if in order. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to obtain additional information. BARBARA B. COPELAND 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).