BVA Case 23-4041: Back

In addition,the appellant maintains that the VA examiner failed to consider or comment on (1)[the appellant] not being permitted to stay overnight;(2)his lay statements that after discharge he was rushed into the [transport]van and heard something rip upon sitting upright;and (3) [his mother's]recounting of [the surgeon's] inability to explain what happened despite performing this surgery over 400 times.

The appellant further argues that the Board provided inadequate reasons or bases for its decision because the Board failed to define the standard it used to determine whether the orchiectomy was an event not reasonably foreseeable, 38 U.

at 27-29,and the Board failed to acknowledge that a medical article on which the examiner and the Board relied to deny his claim identified testicular ischemia as a rare complication and the least common of the complications identified in the article, Appellant's Br.

Finally,he argues that the Board overlooked his mother's written statement,which he contends clearly suggest[s that the surgeon] did not consider the orchiectomy to be an ordinary risk that was reasonably foreseeable.

For his part,the Secretary concedes that the Board erred in failing to ensure that VA satisfied its duty to assist because the June 2015 VA medical opinion is inadequate.

Additionally,under certain circumstances,and as part of its duty to assist claimants,VA must provide a medical opinion.

The Board's determinations regarding entitlement to compensation under section 1151 and whether a medical opinion is adequate are findings of fact that the Court reviews under the clearly erroneous standard.

A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed.