Citation Nr: 1420519 Decision Date: 05/07/14 Archive Date: 05/21/14 DOCKET NO. 12-05 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a compensable rating for left testicle varicocele with chronic left orchialgia and erectile dysfunction prior to April 18, 2012, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1986 to April 1990 and from March 1991 to May 1998. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which granted service connection for left testicle varicocele and granted a noncompensable rating effective September 7, 2010. The Veteran testified before the undersigned in an October 2013 videoconference hearing, the transcript of which is included in the record. Subsequent to the issuance of the July 2013 Supplemental Statement of the Case, the Veteran submitted an additional lay statement from his mother in October 2013, for which a waiver of initial RO consideration was provided. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT For the entire initial rating period on appeal, the Veteran has experienced loss of erectile power as a result of his left testicle disability. CONCLUSION OF LAW The criteria for a 20 percent disability rating, and no more, for erectile dysfunction have been met for the entire initial rating period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2 4.3, 4.7, 4.115b, Diagnostic Code 7522 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). Because this is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a left testicle disability, no additional notice is required. The United States Court of Appeals for the Federal Circuit and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, the October 2013 Board hearing transcript, and statements from the Veteran, his mother, and the authorized representative of record. The Veteran was also afforded VA examinations in December 2010, April 2012, and June 2013. 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). As set forth in greater detail below, the Board finds that the December 2010 and April 2012 VA examinations are the most probative examination of record as they are predicated on a review of the Veteran's medical records; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; and fully address the relevant rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Further, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran is contesting the disability evaluation that was assigned following the grant of service connection for his disability. This matter is therefore to be distinguished from one in which a claim for an increased rating of a disability has been filed after a grant of service connection. The Court has observed that in the latter instance, evidence of the present level of the disability is of primary concern, Fenderson v. West, 12 Vet. App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet. App. 55 (1994)), and that as to the original assignment of a disability evaluation, VA must address all evidence that was of record from the date the filing of the claim on which service connection was granted (or from other applicable effective date). See Fenderson, 12 Vet. App. at 126-27. Accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," evaluations of the disability based on the facts shown to exist during the separate periods of time. See Fenderson, at 126-27. Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). As the Board will discuss in more detail below, the Board finds that the Veteran's symptoms related to the left testicle disability have remained relatively consistent throughout the entire initial rating period and more nearly approximate a 20 percent rating under Diagnostic Code 7522. Accordingly, the Board finds that a staged rating is not warranted in this case. Rating for Left Testicle Disability The Veteran's left testicle disability has been diagnosed as testicular varicocele (abnormal enlargement of the pampiniform venous plexus in the scrotum) and chronic orchialgia (chronic testicular pain). The Veteran has stated that these disabilities cause severe pain and, as a result, have led to erectile dysfunction. During the October 2013 Board hearing, the Veteran testified that during sexual intercourse, the pain is so intense that he is no longer able to maintain an erection. He also reported that, without the support of tight undergarments, he experiences constant and severe testicular pain. The Board acknowledges that testicular varicocele and chronic orchialgia are not disabilities specifically listed in the rating schedule. When a disability not specifically listed in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran's disabilities have therefore been rated under Diagnostic Codes 7522-7120. In this regard, Diagnostic Code 7522 provides a single, 20 percent rating for deformity of the penis with loss of erectile power. Under Diagnostic Code 7120, varicose veins are rated as follows: 10 percent disabling for intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery; 20 percent disabling for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema; 40 percent disabling for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; 60 percent disabling for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; and 100 percent disabling for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Code 7120. If more than one extremity is involved, each extremity is evaluated separately and combined (under § 4.25), using the bilateral factor (§ 4.26), if applicable. Id. The Veteran was afforded a VA examination in December 2010. The Veteran reported pain in the left testicle. He also stated that he had no loss of sexual performance ability, although the Veteran noted that he was not sexually active at that time. The VA examiner performed a physical examination and diagnosed the Veteran with left varicocele, which was noted to be more likely than not due to the in-service injury. In a subsequent April 2012 VA examination report, the examiner noted that he did not review the claims file, but did review medical records and the December 2010 VA examination report. During the evaluation, the Veteran reported chronic pain of the left testicle since the in-service injury. If not wearing form fitting briefs, the Veteran reported that his pain level was moderate with occasional stabbing pain at a 6 or more out of 10. During sexual intercourse, the left testicle was noted to be extremely painful and the Veteran reported losing his erection immediately. The left testicle was also noted to be painful on ejaculation. The examiner diagnosed the Veteran with left varicocele, chronic orchialgia, and erectile dysfunction. According to the April 2012 VA examiner, these diagnoses were related to the in-service injury. The Veteran's ejaculatory pain and loss of erection was noted to be secondary to the pain associated with his testicular injury in-service. In the most recent June 2013 VA examination report, the VA examiner noted that he reviewed VA treatment records, but the Veteran's claims file was not considered. The examiner diagnosed the Veteran with varicocele of the left testicle. Although erectile dysfunction was also diagnosed, the VA examiner opined that it was less likely than not related to the Veteran's testicular disability; however, the VA examiner did not provide a rationale for his opinion and stated that the etiology of the erectile dysfunction was "unknown." Given that the VA examiner did not review the claims file, to include previous VA examinations of record, and did not provide a supporting rationale for his opinion as to why erectile dysfunction was not due to the Veteran's testicle disability, the Board finds the June 2013 VA medical opinion to be of little probative value. The Board has also reviewed and considered the Veteran's and his mother's lay statements regarding his continued complaints of pain and discomfort regarding the left testicle. The Veteran specifically reported constant pain of the left testicle, which significantly increased when not using tight-fitting briefs. He has also complained of erectile dysfunction and pain on ejaculation secondary to the left testicle pain. The Board finds that the Veteran's statements have been consistent throughout the appeal period and are credible. Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's left testicle disability more nearly approximates a 20 percent rating under Diagnostic Code 7522. Although the Veteran's disability involves his testicle, and not a penis deformity as contemplated under Diagnostic Code 7522, the Board finds that the Veteran's erectile dysfunction symptoms are more nearly analogous to Diagnostic Code 7522 than to the varicose vein criteria under Diagnostic Code 7120. The functions affected by the left testicle disability and the anatomical localization and symptomatology are closely analogous to Diagnostic Code 7522. See 38 C.F.R. § 4.20. Further, although the Veteran did not report any erectile dysfunction symptoms at the time of the December 2010 VA examination report, he also stated that he was not sexually active at that time. The weight of the evidence of record demonstrates that, when sexually active, the Veteran has had consistent pain associated with his left testicle disability and loss of erectile power. Accordingly, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating is warranted under Diagnostic Code 7522 for the entire initial rating period on appeal. 38 C.F.R. § 4.3. As a 20 percent rating is the maximum evaluation contemplated under Diagnostic Code 7522, the Board finds that a higher rating is not possible. The next highest 40 percent rating under Diagnostic Code 7120 for varicose veins requires evidence of persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. The Board finds that the weight of the evidence of record does not demonstrate that the Veteran's left testicle disability more nearly encompass a 40 percent rating under this Diagnostic Code 7120 as none of the left testicle symptoms are contemplated by this Code. As such, a higher rating under Diagnostic Code 7120 is not warranted. Extraschedular Considerations The above determinations are based upon application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that, at no point pertinent to this appeal, has the Veteran's service-connected left testicle disability reflected so exceptional or so unusual a picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (2013). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalizations). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. In this case, the Board finds that the schedular criteria is adequate to rate the disability under consideration at all pertinent to this appeal. As noted above, when a disability not specifically listed in the rating schedule is encountered, as in this case, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Although the Veteran does not have a penis deformity as contemplated by a 20 percent rating under Diagnostic Code 7522, he has been diagnosed with varicocele and orchialgia of the left testicle and has experienced erectile dysfunction due to the pain associated with he left testicle disability. As such, the Board finds that Diagnostic Code 7522 adequately contemplates the described symptoms. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disabilities on appeal. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As such, the Board has also considered whether a claim for a TDIU has been raised. In this case, the evidence shows that the Veteran has maintained full-time employment throughout the pendency of this appeal. See VA examination report dated April 2012. As such, a claim for a TDIU has not been raised, and need not be addressed. ORDER For the entire initial rating period on appeal, a 20 percent rating, but no higher, for left testicle varicocele with chronic left orchialgia and erectile dysfunction is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs