Citation Nr: 0503875 Decision Date: 02/14/05 Archive Date: 02/22/05 DOCKET NO. 03-24 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased evaluation for epididymitis, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Jonathan Taylor, Counsel INTRODUCTION The veteran served on active duty from January 1976 to December 1978. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2002 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. VA has notified the veteran of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate his claim and has indicated which portion of that information and evidence, if any, is to be provided by him and which portion, if any, VA would attempt to obtain on his behalf. 2. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 3. The veteran's service-connected epididymitis is currently manifested by recurrent episodes of epididymo-orchitis approximately five times per year, which are treated with antibiotics for approximately 30 days and medication for pain. His treatment is intermittent, not continuous. The veteran does not require frequent hospitalization for his symptoms. CONCLUSION OF LAW The criteria for a disability rating greater than 10 percent for the veteran's epididymitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7525 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Medical records from the Tennessee Department of Corrections show treatment of the veteran on numerous occasions from April 1985 to January 2002 for variously diagnosed episodes of testicular pain, including diagnoses of epididymitis and epididymo-orchitis. The veteran was typically treated with antibiotics, ice, and pain medication. The veteran wore a scrotal support. He was also often placed on limited activity regarding work or physical activity including participation in sports. On July 24, 2002, the veteran was treated as a VA outpatient for a complaint of left testicular swelling and tenderness since four days previously. He had no discharge or dysuria. He reported a history of recurrent epididymitis, which was usually treated with antibiotics. On examination, the veteran's left testicle and epididymis were tender. There was slight swelling. The examiner diagnosed epididymitis. He prescribed Cipro for 10 days and referred the veteran for a genitourinary consultation. At an August 1, 2002, VA genitourinary consultation, the veteran complained of severe pain in his left testicle for the previous two weeks. He reported having recurrent bouts of orchitis/epididymitis since an injury in 1984. Pain was intermittent. He wore a scrotal supporter. He had no voiding complaints and no dysuria or hematuria. The examiner diagnosed epididymitis and prescribed Motrin for pain and completion of a three-week course of Cipro. An August 2002 ultrasound examination of the veteran's scrotum was unremarkable. In September 2002 the veteran was treated as a VA outpatient for a complaint of testicular pain since approximately three weeks previously. Pain was intermittently severe. He wore a scrotal supporter. He had no voiding complaints and no dysuria or hematuria. On examination, the veteran was acutely tender to palpation in the head of the left epididymis. There was no swelling or erythema. The examiner diagnosed epididymitis versus orchialgia. He prescribed Cipro for 30 days, Motrin for pain, and sitz baths. At an October 2002 VA genitourinary examination, the examiner examined the veteran and reviewed his VA medical records but did not review the veteran's claims folder. The veteran had been employed since 1992 with a janitorial service. He was in a supervisory position with building maintenance. His position required much walking, standing, lifting, and climbing up ladders and some sitting. He had intermittent spontaneous recurrence of testicular swelling since an injury in service. His testicles were painful and tender. He had required recurrent antibiotic coverage for the recurrent orchitis and epididymitis. He was usually incapacitated for approximately 4 days until the antibiotics started becoming effective. The symptoms recurred every 4 to 7 months. During a recently ended 10-year incarceration, the veteran had had frequent episodes of orchitis. He was often placed on antibiotics. He had numerous episodes treated with tetracycline and doxycycline. He had received treatment by VA in July, August, and September 2002. The veteran stated that he intermittently had spontaneous development of tenderness of his left scrotal area that increased to a painful sensation. He had edema, increased temperature, and occasional erythema. He had urinary frequency and hesitancy. He had occasional dysuria and rare hematuria. The scrotum on the left had a throbbing, pinching sensation due to the edema. There was no incontinence. He had never required any type of surgical intervention. There was no history of renal calculi, bladder stones, or nephritis. He had not required any type of hospitalizations for urinary tract infection; however, he had been on antibiotics at least four times in the previous 12 months, three of which were noted in his VA medical records. He had received no treatment for malignancy. His most recent prostate specific antigen test, in 2001, was normal. He had required urinary catheterization twice for difficulty passing his urine and to obtain a sterile urinary specimen. He denied any weakness or anorexia. He had not required any type of drainage procedures and no dietary modification. The veteran was unable to identify any precipitating factors for his episodes. Ice packs seemed helpful in alleviating his symptoms. He wore a scrotal support on a daily basis. He wore it 24 hours per day when the scrotal area was tender and edematous. He denied any type of erectile dysfunction. His sexual activity was restricted due to discomfort when his testicles were edematous and enlarged. On examination, the veteran was not in any acute distress. Both testicles were descended into the sac. He had tenderness to the head of the epididymis region. There was no edema and no erythema. There was no urethral discharge. There was no inguinal lymphopathy or inguinal hernia. The examiner diagnosed orchitis and epididymitis. The veteran had been treated three times by VA and had required an extensive antibiotic called Cipro. He had been provided a 3-week to 30-day supply on each occasion. On each occasion, the veteran had been incapacitated for approximately four days. These occurrences typically happened once every 4 to 7 months. On a daily basis, the veteran wore a scrotal support. The last ultrasound had been normal. In March 2003 the veteran was treated as a VA outpatient for recurrent epididymitis/orchitis. He had had recurrent flare- ups since an injury in service. He complained of left scrotal pain since two days previously. He used ice and a scrotal support. He denied any changes in his urinary stream, such as dysuria, frequency, or hematuria. On examination, the left epididymis was very painful to palpation. No swelling or erythema was noted. The examiner diagnosed recurrent epididymitis. She prescribed Cipro for 30 days and ibuprofen. In May 2003 the veteran was treated as a VA outpatient for a history of chronic orchitis versus orchialgia since 1984. Pain was intermittent. The veteran wore a scrotal support for comfort. He had no complaints of dysuria, hematuria, or other voiding difficulties. He currently had sharp pain in his left testicle than was more severe than usual. The veteran was adamant that he had epididymitis. On examination, the left testicle was tender to palpation. The examiner diagnosed orchialgia versus orchitis. She prescribed Septra for 30 days, ibuprofen, and Sitz baths. At an October 2003 decision review officer (DRO) conference at the RO, the veteran stated that his testicle swelled with activity. He treated his symptoms with ice, antibiotics, and pain medication. He had episodes of swelling approximately three times per year. He had last been treated in February 2003. The episode had taken approximately three weeks to resolve. He now took Cipro. A tingling sensation precipitated flare-ups. He had been employed as a plumber for approximately one year. He received treatment at the VA facility in Memphis, Tennessee. He had had an ultrasound and surgery had been discussed, but the veteran and his physicians preferred to continue treatment without surgery. He had had pain with intercourse approximately six times. He had been hospitalized in 2001. Pain was triggered by the strain of lifting more than 75 pounds, so he had made allowances on his job. In November 2003, the VA Medical Center (VAMC) in Memphis, Tennessee, reported to the RO that the veteran had not been hospitalized or treated for epididymitis at that facility in 2001. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. As discussed below, VA fulfilled its duties to inform and assist the veteran on this claim. Accordingly, the Board can issue a final decision because all notice and duty to assist requirements have been fully satisfied, and the veteran is not prejudiced by appellate review. In the present case, a substantially complete application for the veteran's claim was received on May 16, 2002. In a July 17, 2002 letter, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to submit any evidence in his possession that pertains to the claim. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Thereafter, in a rating decision dated in October 2002, the veteran's claim was decided. VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). The letter from the RO, dated on July 17, 2002, complied with these requirements. Additionally, the Board notes that the July 17, 2002 letter to the veteran properly notified him of his statutory rights. That is, even though the July 17, 2002 letter requested a response within 60 days, a recently enacted amendment to the VCAA clarified that the one-year period within which evidence may be submitted does not prohibit VA from making a decision on a claim before expiration of that time period. See 38 U.S.C. §§ 5102, 5103. As for VA's duty to assist a veteran, the veteran's service medical records, VA medical records, and records from the Tennessee Department of Corrections have been obtained. There is no indication that relevant (i.e., pertaining to treatment for the claimed disability) records exist that have not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The veteran was provided a VA examination in October 2002. Although the examiner did not review the veteran's claims folder at that time, the examiner did review the veteran's current VA medical records and elicit a complete history from the veteran. The history taken from the veteran is consistent with the evidence contained in the claims folder. The examination addresses the pertinent criteria for rating the veteran's disability and is adequate for rating purposes and includes an accurate and complete medical history. See 38 C.F.R. § 3.326 (2004). But cf. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board finds that VA has done everything reasonably possible to assist the veteran. A remand or further development of this claim would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the veteran in this case. Further development and further expending of VA's resources is not warranted. Any "error" to the veteran resulting from this Board decision does not affect the merits of his claim or his substantive rights, for the reasons discussed above, and is therefore harmless. See 38 C.F.R. § 20.1102 (2004). There is no reasonable possibility that further assistance to the veteran would substantiate his claim. See 38 C.F.R. § 3.159(d) (2004). Analysis Having determined that the duties to inform and assist the veteran have been fulfilled, the Board must assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2004). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 2002). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2 (2004); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2 (2004). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2004), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2004). An evaluation of the level of disability includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2004). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2004). The veteran's epididymitis is currently evaluated as 10 percent disabling under Diagnostic Code 7525 for chronic epididymo-orchitis. 38 C.F.R. § 4.115b, Diagnostic Code 7525 (2004). Diagnostic Code 7525 provides that chronic epididymo-orchitis should be rated as urinary tract infections. Id. A 10 percent disability evaluation is assigned for urinary tract infections with long-term drug therapy, 1-2 hospitalizations per year, and/or requiring intermittent intensive management. 38 C.F.R. § 4.115a (2004). For the next higher rating of 30 percent, there must be urinary tract infections with recurrent symptomatic infection requiring drainage, frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. Poor renal function is rated as renal dysfunction. After a thorough review of the evidence of record, the Board concludes that the veteran's service-connected epididymitis is appropriately evaluated as 20 percent disabling under Diagnostic Code 7525. The veteran has recurrent episodes of epididymo-orchitis approximately five times per year. His symptoms are treated with antibiotics for approximately 30 days and medication for pain. His treatment is intermittent, not continuous. The veteran does not require hospitalization more than one per year for his symptoms. The veteran's level of disability more nearly approximates the criteria for a 10 percent disability rating under Diagnostic Code 7525 than the criteria for a 30 percent disability rating. See 38 C.F.R. § 4.7 (2004). There is no evidence that the veteran has required drainage, hospitalization more than two times per year, or continuous intensive management for his symptoms. Nor is there evidence of renal dysfunction. Accordingly, the preponderance of the evidence is against a disability rating greater than 10 percent under Diagnostic Code 7525. In exceptional cases where a schedular evaluation is found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2004). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. The Board notes first that the schedular evaluations for the disabilities in this case are not inadequate. Higher ratings are provided for impairment due to urinary tract infections and other genitourinary disorders; however, the medical evidence reflects that those manifestations are not present in this case. Second, the Board finds no evidence of an exceptional disability picture in this case. The veteran has not required more than one recent period of hospitalization for his service-connected epididymitis. Although evidence of that hospitalization is not of record, the Board notes that the schedular rating criteria for the veteran's disability contemplates as many as two or more hospitalizations per year; therefore, a single hospitalization approximately three year ago would not constitute a manifestation of symptoms so unusual as to render impractical the schedular rating criteria providing ratings from noncompensable to 100 percent for genitourinary disabilities. It is undisputed that the veteran's service-connected disability has an adverse effect on his employment, but it bears emphasizing that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2004). Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an increased evaluation for epididymitis, currently evaluated as 10 percent disabling, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs