Citation Nr: 1116472 Decision Date: 04/27/11 Archive Date: 05/05/11 DOCKET NO. 06-31 861A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an increased rating for left varicocele, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, that increased the rating for the Veteran's left varicocele from 20 percent to 40 percent, effective November 15, 2004. In October 2009, the Veteran testified at a hearing before the Board. In December 2009, the Board remanded the claim for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the pendency of the appeal, the Veteran's left varicocele with incontinence of urine required the wearing of absorbent materials changed less than four times per day. CONCLUSION OF LAW Throughout the pendency of the appeal, a disability rating in excess of 40 percent for left varicocele have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.115a, 4.115b Diagnostic Code 7542 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2010). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2010). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left varicocele has been rated as 40 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7542 (2010), which pertains to neurogenic bladder. The Board notes that the RO has rated the Veteran's disability by analogy, as the rating schedule does not specifically address the urinary voiding manifestations of left varicocele. However, because the Veteran's left varicocele has been shown to no longer exist on examination, with no indication of any current residual symptoms, the Board can find no other rating criteria that would offer the Veteran the benefit of an increased rating under the ratings of the Genitourinary System. 38 C.F.R. § 4.115b (2010). Accordingly, the Board will rate the claim pursuant to Diagnostic Code 7542. A neurogenic bladder disability must be rated according to the level of voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7542 (2010). Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a (2010). For urinary incontinence, a 20 percent rating is assigned when the wearing of absorbent materials is required and when the absorbent materials must be changed less than two times per day. Urinary incontinence requiring the wearing of absorbent materials that must be changed two to four times per day is assigned a 40 percent rating. Urinary incontinence requiring the use of an appliance of the wearing of absorbent materials that must be changed more than four times per day is assigned a 60 percent rating. 38 C.F.R. § 4.115a (2010). VA treatment records beginning in November 2003, one year prior to the claim for increased rating, show that the Veteran had nocturia approximately once per night. He denied incontinence but stated that he had urgency, dribbling, and frequency. Prostate examination revealed the presence of symptomatic benign prostate hyperplasia (BPH). On April 2005 VA examination, the Veteran reported that since 1999, he had been wearing Depends diapers daily with at least one change per day. He experienced about one major episode of incontinence once per week which necessitated changing his clothing. His nocturia was frequent, yet variable, occurring every one to four hours. There was no history of nocturnal incontinence, just considerable urgency. The Veteran had undergone dilation of the urethra a number of years previously with temporary clinical response. His urinary incontinence was assessed as not having been properly diagnosed or treated and he was referred to the urology clinic for future care. VA treatment records show that the Veteran had been prescribed medication for his BPH and in April 2005, that condition was considered to be stable. On February 2006 urology consultation, the Veteran reported symptoms of urinary incontinence, urgency, and frequency. He went to the bathroom every two hours during the night and every three hours during the daytime. He had trouble starting and stopping urination and frequently dribbled, with no steady stream. Physical examination of the genitalia demonstrated pain in the left scrotum and diffuse pain on palpation of the lower abdominal region. The diagnosis was urinary urgency. A cystoscopy was ordered for further evaluation. An addendum note stated that the Veteran had no acute symptoms. The genitourinary examination showed somewhat higher bladder volume with evidence of BPH. No acute pathology was found. On February 2006 follow-up, the Veteran's polyuria was thought to possibly be secondary to his BPH. In September 2006, the Veteran was evaluated for a study he was taking part in for BPH. He apologized for not taking the correct medication as was requested. Treatment records from Walter Reed Army Medical Center (Walter Reed) show that in May 2006, the Veteran has a bacterial infection, epididymitis, for which he was given an antibiotic. Testicular examination was normal but for pain associated with epedidymys and was relieved with elevation of the testicles. In September 2006, the Veteran reported that his BPH manifested by occasional incontinence. On January 2007 VA examination, it was noted that he had longstanding BPH dating back to 1995. He was taking Flomax for his urinary symptoms. He also had a history of neurogenic bladder and diabetes mellitus. He reported having urinary frequency three times per day and then at night. He used continent devices. The examiner noted that the Veteran was status post cystoscopic examination but found the results to be unclear. Physical examination was significant only for a mildly enlarged prostate of a benign consistency. The diagnosis was non-insulin dependent diabetes, symptomatic BPH, and urinary incontinence. It was recommended that a complete urologic evaluation be conducted to further determine the etiology of the incontinence and whether it was secondary to his diabetes or prostatic enlargement. Walter Reed records show that in July 2007, it was noted that the Veteran had urinary frequency, incomplete emptying of the bladder, and hesitancy. On January 2008 VA examination, the Veteran reported having urinary urgency, difficulty starting the stream, and weak stream. He voided every one to two hours during the day and about three times at night. He changed his absorbent materials two to four times per day. Physical examination revealed a normal bladder examination, urethra examination, penile examination, and testicular examination. The scrotom was normal. The diagnosis was neurogenic bladder. VA treatment records show that on January 2008 geriatric examination, the Veteran reported that he took Flomax and other medications for his prostate but was not always compliant with medications if he did not like the side effects. Walter Reed treatment records show that in May 2009, the Veteran was suffering from cystitis. Antibiotics had helped and he was voiding better. In September 2009, the Veteran reported having increased urination over the previous two months. Flomax would hold him for the first part of the day, but after eight to twelve hours, he would not be able to hold his bladder. It was felt that his urinary incontinence was secondary to either a urinary tract infection or diabetes mellitus. His diabetes medications would possibly be adjusted. He was to follow up with the urology clinic. At his October 2009 hearing before the Board, the Veteran reported that he changed his absorbent materials five times per day. He stated that he could not empty his bladder when urinating and had to urinate at least every two hours, with minimal success. Because he retained urine in his bladder, the urine would leak and he had started to wet the bed. On June 2010 VA examination, the Veteran reported periodic left scrotal discomfort that passed. He wore a jack strap for relief. He voided every three hours during the day and every two hours at night. He had urgency and incontinence and wore adult diapers at all times. Physical examination revealed a normal bladder, urethra, and testicular examination. The prostate was generally enlarged. There was no evidence of any current varicocele at rest or with valsalva. The examiner stated that no current diagnosis of varicocele could be made as it was no longer present on examination. In reviewing the medical records, the examiner commented that the Veteran had a chronic urinary tract infection that he was being followed for at Walter Reed, and that he also had diabetes mellitus. The diagnosis was instead BPH with urinary retention, diabetes mellitus, recurrent urinary tract infections, urinary incontinence, and eneurosis. In September 2010, the VA examiner who conducted the June 2010 examination spoke to the RO via telephone and indicated that the Veteran's current urinary symptoms were related to BPH, diabetes mellitus, and dementia. In this case, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating for his left varicocele. As stated on June 2010 VA examination, and as is apparent in the treatment records throughout the pendency of the appeal, the Veteran's current urinary incontinence and voiding dysfunction have been medically attributed to his nonservice-connected diabetes mellitus, benign prostatic hypertrophy, and dementia, rather than to his service-connected varicocele. At no time during the pendency of the appeal has a physician related the Veteran's current symptoms of urinary incontinence, urgency, and frequency to his left varicocele, nor is there evidence that that condition currently exists. A review of the claims file shows only that on April 2000 VA examination, prior to the appeal period, a nontender left varicocele was found. When questioned, the Veteran was unaware of any scrotal masses. Accordingly, because the Veteran's urinary incontinence and voiding dysfunction have been medically attributed to conditions for which he is not in receipt of service connection, and there is no medical evidence to the contrary, the Board finds that an analysis as to whether his current urinary symptoms meet the next highest rating is not necessary because any symptomatology that is shown to be due to non-service connected causes cannot be rated. Though on 2010 VA examination, the Veteran reported passing scrotal pain, those symptoms have not been attributed to the service-connected left varicocele, and therefore there are no combination of symptoms or manifestations to warrant a higher rating. In any event, scrotal pain would not warrant a rating greater than 40 percent. Accordingly, the claim must be denied. The Board further notes that the record contains no indication of marked interference with employment or frequent hospitalization warranting consideration of referral for an extra-schedular rating for left varicocele, nor has the Veteran argued that extra-schedular consideration is warranted. 38 C.F.R. § 3.321(b) (2010). The June 2010 VA examiner stated that the Veteran's left varicocele did not cause marked interference with employment. The evidence does not show that he has been hospitalized due to the varicocele. Thus, no action with respect to referral for consideration of an extra-schedular rating is warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Therefore the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating for a left varicocele and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The notice 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in January 2005, April 2005, June 2005, October 2006, July 2007, and May 2008; a rating decision in October 2005 and March 2008; a statement of the case in July 2006, and supplemental statements of the case in March 2008, October 2008, and April 2009. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006), Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the February 2011 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Entitlement to an increased rating for left varicocele is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs