Citation Nr: 1023296 Decision Date: 06/22/10 Archive Date: 07/01/10 DOCKET NO. 07-34 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic erectile dysfunction to include ejaculation difficulty. 2. Entitlement to an initial disability evaluation higher than 10 percent for the Veteran's post-operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance. 3. Entitlement to an initial disability evaluation higher than 10 percent for the Veteran's post-operative scrotal scars. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) had active service from January 2003 to August 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Salt Lake City, Utah, Regional Office which, in pertinent part, established service connection for post-operative bilateral spermatocele residuals with spermatocelectomy residuals, scars, bilateral testalgia, and sensory disturbance; assigned a 10 percent evaluation for that disability; effectuated the award as of August 4, 2006; and denied service connection for both a skin disorder to include stomach and bilateral arm boils and erectile dysfunction to include ejaculation difficulty. In October 2006, the Veteran informed the Department of Veterans Affairs (VA) that he had moved to Missouri and requested that his claims files be transferred to the St. Louis, Missouri, Regional Office (RO). In September 2007, the RO recharacterized the Veteran's post- operative bilateral spermatocele residuals as post-operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance evaluated as 10 percent disabling and scrotal scars evaluated as 10 percent disabling; granted service connection for stomach and bilateral arm boils; assigned a 10 percent evaluation for that disability; and effectuated the awards as of August 4, 2006. In April 2009, the Board remanded this claim for additional development. The Board is also satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the RO contacted the Veteran and requested information from him as mandated by the Board. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. There is no competent evidence that the Veteran currently has erectile dysfunction. 2. The Veteran's post-operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance is productive of pain requiring medication, but not recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than 2 times per year) and/or requiring continuous intensive management. 3. In September 2008, before the Board promulgated a decision, the Veteran's representative at that time submitted to the RO a signed, written request to withdraw the appeal for a higher initial rating for the Veteran's post-operative scrotal scars. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic erectile dysfunction to include ejaculation difficulty have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 2. The criteria for an initial disability evaluation higher than 10 percent for post-operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.115b, Diagnostic Code 7525 (2009). 3. The criteria for withdrawal by the appellant of his substantive appeal on the issue of entitlement to an initial disability evaluation higher than 10 percent for post- operative scrotal scars have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Veteran's initial evaluation claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to the service connection claim, an undated letter is in the file to which the Veteran responded in March 2006. Another letter was sent to him in January 2008 and VCAA duty to notify was satisfied by way of that letter. It fully addressed all notice elements. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Veteran was issued an SSOC in September 2008. Therefore, the Veteran was "provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Consequently, the Board finds that the duty to notify has been satisfied. With respect to the Dingess requirements, in March 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical treatment and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA outpatient records and private treatment records as well as the Veteran's service treatment records. The Veteran was also afforded VA examinations in connection with his claims. See 38 C.F.R. § 3.159(c)(4) (2009). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate. As to the initial rating claim, each examiner examined the Veteran and took a complete history. The claims file was reviewed. The examinations provided adequate basis for rating the Veteran's disorder. As to the service connection claim, the Veteran was examined and his records were reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for Erectile Dysfunction to include Ejaculation Difficulty. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, and for some disorders, may be presumed if manifested to a compensable degree within the first post service year. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a), 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Veteran claims that he has chronic erectile dysfunction that is service-connected. As there is no competent evidence that the Veteran currently has the disability claimed, as will be explained below, the Board is denying this claim. When the Veteran was examined by VA in March 2006, the Veteran stated that he is unable to achieve and maintain an erection more than 10-15 minutes and that prior to his surgery he could achieve and maintain an erection for 2-3 hours. The examiner stated that the Veteran did not have erectile dysfunction but he is able to achieve and maintain an erection for 10-20 minutes only secondary bilateral spermatocele. On VA examination in September 2008, the Veteran stated that he could ejaculate with intercourse and that the reduction in time that he can maintain an erection is about 30 minutes. He reported that formerly he could maintain an erection for 3-4 hours. The examiner stated that it should be obvious that the Veteran does not have erectile dysfunction. Congress has specifically limited entitlement to service- connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. It follows that competent evidence of a current disability is required to establish a valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994). By "disability" is generally meant "an impairment in earnings capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (Citing with approval VA's definition of "disability" in 38 C.F.R. § 4.1 and "increase in disability" in 38 C.F.R. § 3.306(b)); Felden v. West, 11 Vet. App. 427, 431 (1998); see also Leopoldo v. Brown, 4 Vet. App. 216, 219 (1993) (A "disability" is a disease, injury, or other physical or mental defect."). The record is absent any competent medical finding that the Veteran has the disability claimed. On VA examinations the Veteran has been found not to have the disorder. As a general matter, a claimant without a medical background is deemed competent to allege symptoms of a current claimed disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (indicating competency of lay testimony to describe symptoms that support a later diagnosis by a medical professional). However, the medical inquiry taken through scheduling examinations did not provide indication of a current disability. With respect to his claimed sexual dysfunction, regarding ejaculation difficulty the record shows that he can achieve and maintain an erection and ejaculates with intercourse. The competent evidence thus clearly weighs against the presence of a current disability. Without indication of a current disability the question of the etiology of the disorder claimed does not require additional consideration. Hence, the preponderance of the evidence is unfavorable, and the benefit-of-the-doubt doctrine does not apply. The claim on appeal for service connection for erectile dysfunction on any basis cannot prevail. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Initial Evaluation Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's disability is evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7525, which provides that the disability shall be rated as a urinary tract infection. Under 38 C.F.R. § 4.115a, a 10 percent disability rating is warranted for a urinary tract infection requiring long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management. A 30 percent disability is warranted where there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than 2 times per year) and/or requiring continuous intensive management. 38 C.F.R. § 4.115a further provides that a urinary tract infection manifested by poor renal function shall be rated as renal dysfunction. In cases of renal dysfunction, a zero percent evaluation is assigned for albumin and casts with a history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. A 30 percent evaluation is warranted for 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 60 percent evaluation is in order for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent evaluation is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent evaluation contemplates cases 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected chronic post-operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In cases where the original rating assigned is appealed, consideration must be given to whether the Veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was granted service connection for chronic post- operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance in a September 2006 rating decision. The disability was assigned a 10 percent rating. The Veteran appealed this decision, contending that the severity of the symptoms associated with the post-operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance warranted a higher rating. The Veteran was examined by VA in March 2006. His medical records were reviewed. He denied a history of urinary tract infection, urethral discharge or dysuria. It was noted by way of history that he had undergone excision of the bilateral epididymis, testis, excision of the lesion of the right epididymis and excision of the localized abscess of the right epididymis during service. He reported having chronic testicular pain on standing, walking, running and bending. He indicated that he did not have dysuria, hematuria, decreased stream of urination, urinary tract infection, blood or stone or renal colic. The finding was, bilateral spermatocele, status post spermatocelectomy, with subsequent bilateral testalgia until present time in spite of taking different pain medications and ilioinguinal nerve block. VA outpatient treatment records for 2007 and 2008 have been reviewed. They show that the Veteran was treated in August 2008 and he complained of testicular pain. In September 2008, the Veteran underwent a VA neurological examination. The claims file and service treatment records were reviewed. His medical history was documented. The Veteran was examined and it was noted that he did not have a cremasteric reflex elicited but he did have normal sensory response in the genital area. The finding was, post spermatocele/epididymal cystectomy neuralgia. He also underwent a VA genitourinary examination that same month. The claims file was reviewed, and his history was noted. He was noted to have daytime urinary frequency 2-3 times and no nocturnal frequency. He had no instances of urinary incontinence, urinary tract infections, renal colic or bladder stones or acute nephritis. He was noted to have never been hospitalized for urinary tract disease. He has not needed catherization, dilation, drainage or diet therapy. He was on no medications for this but had been taking Ibuprofen and Clomid for pain in the past. The Veteran did not provide a specimen for an ordered urinalysis. Based on the foregoing evidence, the Board has determined that the Veteran is not entitled to a disability rating in excess of 10 percent for his chronic post-operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance. In so finding, the Board notes that none of the medical evidence of record demonstrates at any time during the appeal period that the Veteran experiences recurrent symptomatic infection requiring drainage with frequent hospitalization and/or requiring continuous intensive management, which would warrant a higher 30 percent rating under Diagnostic Code 7527. There is also no indication of renal involvement in the present case, as would warrant a higher evaluation on the basis of renal dysfunction. While it is clear that the Veteran is taking medication and occasionally receives treatment for the condition, the record does not establish frequent or continuous treatment necessary to establish a 30 percent rating. Moreover, the Board has found no basis to assign a separate rating for this condition. He has been assigned a separate 10 percent evaluation for scars. The Veteran has not complained of urinary frequency or nocturia, and none of the medical evidence of record substantiates any such findings. There is no indication from the record that the Veteran has complained of or been treated for voiding dysfunction and it was noted in September 2008 that he had normal sensory response. The Board has considered the Veteran's statements with regard to the severity of his testicular pain and the functional impact of this disability on his daily activities. The Veteran has been granted a 10 percent disability rating and this rating encompasses any functional impairment resulting from the disability. As explained above, the objective evidence shows that he does not have sufficient functional impairment to warrant a higher schedular rating. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 10 percent rating. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for the disability and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of those contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Finally, the Veteran has not directly asserted, and the record does not otherwise suggest, that this disability has interfered with employability so as to raise a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). Overall, the evidence does not support entitlement to an initial disability rating in excess of 10 percent for post- operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance, and the claim is denied. 38 C.F.R. §§ 4.3. 4.7. Post-operative Scrotal Scars In September 2008, the Veteran's representative at that time provided written notice to the RO that the Veteran wished to withdraw his appeal concerning entitlement to an initial evaluation beyond 10 percent for post-operative scrotal scars. Under 38 U.S.C.A. § 7105(d)(5), the Board has the authority to dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See also 38 C.F.R. § 20.202 (the Board may dismiss any appeal which fails to allege specific error or fact of law in the determination being appealed). A substantive appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). Such withdrawal may be made by the appellant or by his or her authorized representative, and unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a). The September 2008 request to withdraw the Veteran's appeal was submitted before the Board promulgated a decision. 38 C.F.R. § 20.204(a), (b)(3). It is in writing and is signed by the Veteran's then representative. 38 C.F.R. § 20.204(a). There is nothing in the record thereafter which would show that the Veteran did not intend to withdraw that issue. Consequently, there remain no allegations of error of fact or law for appellate consideration in the appeal of that issue. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER Entitlement to service connection for chronic erectile dysfunction to include ejaculation difficulty is denied. Entitlement to an initial disability rating higher than 10 percent for chronic post-operative bilateral spermatocele residuals with spermatocelectomy residuals, bilateral testalgia, and sensory disturbance is denied. The claim for an initial disability rating higher than 10 percent for post-operative scrotal scars is dismissed. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs