Citation Nr: 0617382 Decision Date: 06/14/06 Archive Date: 06/26/06 DOCKET NO. 01-04 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased (compensable) rating for a spermatocele. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from October 1989 to August 1994. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision by the Department of Veterans Affairs (VA) regional office (RO) in St. Petersburg, Florida. The case subsequently came under the jurisdiction of the RO in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The spermatocele has not resulted in renal dysfunction, voiding dysfunction, or urinary tract infection. 2. The spermatocele has not been shown to have resulted in pain and tenderness on examination, and does not result in limitation of function. CONCLUSION OF LAW The criteria for assignment of a compensable disability rating for a spermatocele are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, 4.118, Diagnostic Codes 7529, 7804 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that each of the four content requirements of a duty to assist notice has been fully satisfied. See 38 U.S.C.A. § 5103(a);38 C.F.R. § 3.159(b). The communications, such as letters from the RO dated in May 2001, September 2001, December 2004 and June 2005 provided the veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the December 2004 letter specifically told the veteran to submit any additional evidence that he had in his possession. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The veteran's initial duty to assist letter was provided after the adjudication of his claim. However, he was later given the notice letters and was given an ample opportunity to respond. He has not claimed any prejudice as a result of the timing of the letters. Therefore, to decide the appeal would not be prejudicial error. Further, because an increased rating is denied, any question as to the appropriate effective date for this increase is moot, and there can be no failure-to-notify prejudice to the veteran. See Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. The veteran was afforded VA examinations. His post service treatment records have been obtained. He has declined a hearing. The Board does not know of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence is required. The Board has reviewed the full history of the veteran's service-connected disability. The veteran requested disability compensation for a left testicular growth in September 1994. In a rating decision of November 1994, the RO granted service connection for a spermatocele and assigned a noncompensable rating. The rating has remained at that level since that time. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The RO has assigned a noncompensable rating pursuant to Diagnostic Code 7529 which provides that a benign neoplasm of the genitourinary system may be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Under 38 C.F.R. § 4.115, a 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted if there is persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 40 percent rating is warranted if there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. A 30 percent rating is warranted if there is albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A noncompensable rating is warranted if there is albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101. A voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. Where there is continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent rating is warranted. A 40 percent rating is warranted where the disorder requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 20 percent rating is warranted where the disorder requires the wearing of absorbent materials which must be changed less than 2 times per day. For a rating based on urinary frequency, a 40 percent rating is warranted when there is a daytime voiding interval less than one hour, or awakening to void five or more times per night. A 20 percent rating is warranted when there is a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 10 percent rating is warranted when there is a daytime voiding interval between two and three hours, or awakening to void two times per night. For a rating based on obstructed voiding, a 30 percent rating is warranted when there is urinary retention requiring intermittent or continuous catheterization. A 10 percent rating is warranted if there is marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc. 2. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec). 3. Recurrent urinary tract infections secondary to obstruction. 4. Stricture disease requiring periodic dilatation every 2 to 3 months. A noncompensable rating is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. For a rating based on urinary tract infection, if there is poor renal function, rate as renal dysfunction. A 30 percent rating is warranted if there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. A 10 percent rating is warranted if the disorder requires long-term drug therapy, 1-2 hospitalizations per year and/or requires intermittent intensive management. See 38 C.F.R. § 4.115a The Board also notes that the veteran's representative has requested that the veteran's spermatocele be rated by analogy to a scar. Under Diagnostic Code 7804 a 10 percent rating is warranted if a scar is painful on examination. Under 38 C.F.R. § 4.31, however, a zero percent rating shall be assigned when the requirements for a compensable evaluation are not met. The evidence pertaining to the current severity of the disorder includes the report of an examination conducted by the VA in May 1999 which reflects that the veteran had a history of a spermatocele which had gradually increased in size. The veteran reported that he had noticed some tenderness on compression and occasionally had morning tenderness in the left testicle. On examination, the left side of the scrotum had a 4 by 5 centimeter cystic mass superior to the left testicle. It was slightly tender to compression and was freely movable. The diagnosis was cystic mass, left scrotum which had the appearance of a hydrocele more so than a spermatocele. The examiner further concluded that "The veteran is having no particular symptoms from this mass, which is described above." The report of a VA genitourinary examination conducted by the VA in July 1999 shows that the veteran gave a history of first noticing a small lump in his testicle approximately eight years earlier, and said that it had increased in size since then. He reported that it occasionally caused him pain. This reportedly happened about to or three times a year. He had not had any infection or trauma to his testicle. Doctors reportedly had told him that it was a fluid collection that he should not worry about. He had not had any hematuria or hematospermia. He had normal sexual function, although he described an overactive cremasteric reflex. Genitourinary examination revealed a normal male phallus. He had no inguinal hernias. His testicles were descended bilaterally and the testicles themselves were normal. The epididymis on the left was slightly enlarged. He did have a cystic structure that transilluminate near the head of the left epididymis. It was non-tender. The assessment was that the veteran likely did have a spermatocele that caused minimal symptoms. The examiner recommend an ultrasound as the spermatocele had increased in size. The report of a genitourinary examination conducted by the VA in March 2005 shows that the examiner reviewed the claims file prior to the examination. He noted that the veteran had been diagnosed with a spermatocele while in service. At that time, it was pea sized, and had grown almost to the size of a testicle. The veteran complained of having occasional pain in the left testicle. He denied any particular voiding dysfunction. He had not been on any long term drug therapy and had not been hospitalized. He had not had any intensive management on a continuous basis, or on an intermittent basis in regard to the spermatocele. The veteran stated that it could be tender at times; however, the frequency could not be discerned as it could come any particular time. The veteran reportedly had not had any recurrent urinary tract infections, renal colic, bladder stones, acute nephritis or hospitalizations for urinary tract infections. It was noted that the disorder did not interfere with the veteran's job as the owner of a business. The veteran stated that his left testicle may hurt early in the morning or with changes in weather. No catheterization was needed. The veteran reported that he had noticed a problem with erectile dysfunction over the last two months. He had recently been started on Viagra with good effect. On physical examination, palpation of the testicles, epididymides and spermatic cord revealed normal anatomy. No hernias were appreciated. Testicular size on the right was normal. Para-testicular size on the left appeared mildly enlarged. Sensation reflexes were normal. An ultrasound revealed a 3 centimeter epididymal cyst/spermatocele on the left side. The diagnosis was left spermatocele with intermittent pain and erectile dysfunction. The examiner noted that the patient has had no chronic or intermittent therapy. An examination addendum dated in July 2005 reflects that the VA examiner noted that the veteran is service-connected for a spermatocele. He explained that spermatocele are cystic masses that arise from the caput of the epididymis and thus were always located superior to the testis and are palpated distinct from the testis. He noted that spermatoceles generally range in size from 2 to 5 centimeters and rarely cause symptoms. The examiner noted that occasionally patients require surgical excision for chronic pain related to a spermatocele, but that the veteran did not have chronic pain per his own testimony. The VA examiner further concluded that it was not at least as likely as not that the service connected spermatocele caused or exacerbated the veteran's erectile dysfunction. After weighing all of the evidence, the Board concludes that the preponderance of the clinical and other probative evidence of record shows that the veteran does not suffer from a painful scar on examination as required for a compensable evaluation under the provisions of 38 C.F.R. Part 4, Diagnostic Code 7804. The Board has noted that the examination conducted in May 1999 reportedly showed that there was slight tenderness. However, the examiner summarized the findings by stating that the veteran is having no particular symptoms. Such conclusions are contradictory, and in any event "slight tenderness" does not appear to rise to the level of the pain contemplated for a compensable rating. In addition, the VA examination conducted in July 1999 specifically stated that the disorder was non tender on examination. The VA examination conducted in March 2005 also did not include a findings of tenderness. Overall, the weight of the evidence is against the assignment of a compensable rating under Diagnostic Code 7804. The Board further notes that the evidence shows that the spermatocele has not resulted in renal dysfunction, voiding dysfunction or urinary tract infection. Therefore, a compensable rating may not be assigned under the criteria set forth in 4.115a. Although his treatment records show that he has reported complaints of sexual dysfunction, the VA examiner in July 2005 specifically stated that the symptoms were not related. The use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation is to be avoided. See 38 C.F.R. § 4.14. Accordingly, the Board concludes that the criteria for assignment of a compensable disability rating for a spermatocele are not met. ORDER An increased (compensable) rating for a spermatocele is denied. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs