Citation Nr: 0306729 Decision Date: 04/08/03 Archive Date: 04/14/03 DOCKET NO. 02-09 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for lumbosacral strain. 2. Entitlement to an initial compensable evaluation for left testicular varicocele and residual episodic bilateral testicular pain, status post vasectomy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD L. Spear Ethridge, Counsel INTRODUCTION The veteran had active duty from June 1993 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2001 rating decision by the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO granted service connection for lumbosacral strain (claimed as lumbar spine disc bulge), and assigned a 10 percent evaluation, effective November 21, 2000. Service connection for left testicular varicocele and residual episodic bilateral testicular pain, status post vasectomy (claimed as bilateral testes/hydrocele and spermatocele) was also granted, and a zero percent evaluation was assigned, effective November 21, 2000. In October 2002, the veteran testified at a personal hearing before a Decision Review Officer at the RO. A transcript of that hearing has been associated with the claims folder. FINDINGS OF FACT 1. Lumbosacral strain is manifested by subjective complaints of weakness and pain, and objective evidence of recurrent and symptomatic chronic lumbosacral strain, with some painful and limited motion, negative lumbar spine x-ray series with no significant abnormalities shown, and no current evidence of lumbar spine disc bulge on x-ray examination. 2. Left testicular varicocele is productive of disability manifested by testicular aching and pain. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5295 (2002). 2. The criteria for the assignment of an initial 10 percent rating, and not higher, for the service-connected left varicocele have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.31, 4.104, Diagnostic Codes 7120, 7523 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background It is noted for the purposes of addressing the veteran's contentions that an inservice computerized tomography scan of the lumbar spine, dated in May 2000, revealed an impression of L4-L5 mild annular intervertebral disc bulging. In January 2001, the veteran underwent VA examination for compensation purposes. The claims folder was reviewed extensively by the examiner. Regarding the issue of lumbar spine disc bulge, the veteran stated that he started having pain in his back while he was on active duty 2 years ago. It was mostly related to his military activities and sports activities. He currently had constant pain on his back, that was moderate in intensity and radiated to both of his legs. The radiating pain occurred 3 to 4 times a day, and it was associated with excruciating pain to the lower back; which lasted for about 5 minutes. It is unclear whether the pain was relieved by Tylenol and muscle relaxants, as the examiner indicated both that it was and was not in the examination report. Flare-ups, with excruciating pain, occurred at least 3 to 4 times a day. There was occasional weakness and stiffness of the back. The veteran denied fatigue, but had increased lack of endurance because of this condition. He had had no treatment for the back. Running, walking and lifting more than 45-50 pounds, and sexual activity made the back pain worse. Stretching, exercise and rest, made the pain better. The veteran reported that he did not use a back brace, and had not had surgery to his back. His daily activities were slowed down. He was able to do his duties at home. He had been recently discharged from the military and had not yet found a job; so the disability did not affect his employment. Physical examination revealed that the veteran was alert, talkative and in no apparent distress. He came to the physical examination with no signs of pain. Musculoskeletal examination revealed no muscle atrophy or muscle wasting of the extremities. There was no cyanosis or clubbing of the extremities. Back examination revealed flexion forward to 95 degrees with no pain or discomfort. Extension backwards was to 30 degrees, with some discomfort felt. Lateral flexion, both right and left, to 30 degrees with only discomfort felt to the lower back. Rotation was to 35 degrees with only mild discomfort. There were no gait abnormalities, and the veteran could walk on his heels and toes without any difficulty. Straight leg evaluation test bilaterally was negative. A lumbosacral spine series dated in January 2001 showed no significant abnormalities of the lumbar spine. The impression was negative lumbar spine series. This corresponding radiology report is of record. The examination diagnoses were lumbar spine disc bulge, not found; and recurrent and symptomatic chronic lumbosacral strain, found. Regarding the bilateral testes problem, the veteran stated that in 1998 he had a vasectomy. Six months later, he started having excruciating pain to his testicles, and he was referred by the military physicians to a urologist. Further examination revealed prostatitis which caused pain to his testicles. He received treatment for prostatitis for 6 months. Even so, the veteran stated that his condition did not improve. His condition was the same currently. He had daily pain on his testicles, described as being intermittent, excruciating, and severe. The pain was present during the day and after sexual activity. It usually lasted for 10 to 15 minutes, and was relieved spontaneously with rest and Tylenol. The veteran that he was told that the testicular pain was probably related to his vasectomy and prostate conditions. Rectal examination showed good sphincter tone, and that the prostate was mildly enlarged. There were no lumps or masses, and there was mild tenderness to deep palpation of the prostate. Good, normal sized testicles were seen, and there was no apparent tenderness to deep palpation to any aspect of the testicles. There were no apparent lumps on the testicles, and the examiner stated that "most likely what he had is residual of vasectomy with secondary scar in this area." A bilateral testicular ultrasound done in January 2001 revealed prominent epididymitis as indicated, and that mild epididymitis could not be ruled out. There was a varicocele on the left and, otherwise, both testes appeared normal in size and texture. There was no evidence of tortion. This corresponding radiology report is of record. The examination diagnoses were status post vasectomy with residual episodic bilateral testicular pain, found; prostatitis, resolved, found; mild prostatic hypertrophy, found; and asymptomatic left testicular varicocele, found. A June 21, 2001 VA outpatient treatment record shows that the veteran was seen for lower back pain. He said that he had hurt his back a week ago. In a corresponding Addendum, referral was made to the negative January 2001 lumbar spine films. Straight leg raising was negative, and reflex knee jerks were 2+ bilaterally. There was no point of specific pain and there was full range of motion of the hips and knees, with mild tenderness of the lumbar spine. The assessment was arthralgia anxiety. A June 27, 2001 VA outpatient treatment record shows that the veteran was seen for testicular pain. He indicated having "knot like" growths between the testicles and anus. His history of prostatitis treatment was noted. He denied any dysuria, and had no fever or chills. Objective observation revealed that he could ambulate and express himself with ease. Further evaluation was needed. In a corresponding Addendum from this date, it was noted that, by observation, there was no scrotal swelling. There was a tender bilateral testicular soft tissue mass. There was no redness or swelling. The assessment was varicocele. A September 2001 VA outpatient treatment record shows that the veteran was seen for low back pain times 1 year. Physical examination revealed normal range of motion on the extremities, no joint swelling, no effusions, peripheral pulses were palpable, and musculoskeletal examination revealed good muscle tone. The assessment was low back pain. His history status post vasectomy, varicocele was also noted in the assessment. VA records show that chronic back pain was also noted in October 2001 and January 2002. In October 2002, the veteran testified at a personal hearing at the RO before a Decision Review Officer. He argued that his service-connected back disability should be rated under the criteria for intervertebral disc syndrome because examination of his back in service showed that there was a bulged disc. He indicated that he had pain shooting down his legs to his feet. The veteran testified that he had weakness of the back and wore a back brace when standing. He had throbbing pain in the back and he indicated that he took over the counter medication for back pain. He said that he had flare-ups every other day, and that the flare-ups lasted for 10 to 15 minutes. The veteran testified that he had had enlarged testicles since his vasectomy. He described having two hard and tender knots on each side. He used precaution and guarding when standing, and he occasionally had erectile dysfunction. He had daily pain with this disability, including pain after intercourse. There was no penile leakage, incontinence, urinary frequency or blood. He took no medication for this disability. II. Legal Analysis VCAA Congress has amended VA law to eliminate the requirement for a well-grounded claim, enhance VA's duty to assist a claimant in developing facts pertinent to his claim, and expand on VA's duty to notify the claimant and his representative, if any, concerning certain aspects of claim development. See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West 2002)). In addition, VA implemented regulations that reflect the statutory changes effected by the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2002). Review of the claims folder reveals compliance with the statutory and regulatory provisions. That is, by way of the June 2001 VCAA letter, May 2001 rating decision, May 2002 Statement of the Case, and November 2002 Supplemental Statement of the Case, the RO provided the veteran and his representative with the applicable law and regulations and informed him of the type of information and evidence necessary to substantiate his claims, and of who is responsible for producing evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therein, the RO provided the veteran with the new codified VCAA regulations, under 38 C.F.R. § 3.159, and explained the types of medical and lay evidence needed to evaluate his claims. The veteran was advised that he could submit private evidence or identify providers and authorize release of the records directly to VA. The Board finds that the RO's actions are sufficient to satisfy the VCAA's notice requirements. With respect to the duty to assist, the RO secured all relevant VA outpatient treatment records and a relevant medical examination in January 2001, with indicated diagnostic tests. As there is no other allegation or indication that relevant evidence remains outstanding, the Board is satisfied that the duty to assist is met. 38 U.S.C.A. § 5103A. Finally, the veteran has had ample opportunity to present evidence in support of his appeal. Therefore, there is no indication that the Board's present review of the claim will result in any prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Higher Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2002). If two evaluations are potentially applicable, 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. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Id. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2002). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Lumbosacral Strain Disability from lumbosacral strain is currently evaluated as 10 percent disabling under Diagnostic Code 5295. 38 C.F.R. § 4.71a. The Board acknowledges that there are other diagnostic codes for evaluation of low back disability. However, there is no evidence of vertebral fracture, ankylosis, or disc pathology to warrant application of Diagnostic Codes 5285, 5286, 5289, or 5293, respectively. In particular, the veteran contends that his low back disability should be considered under the rating criteria for intervertebral disc syndrome, Diagnostic Code 5293,because a disc bulge was shown in service in May 2000. Indeed, VA addressed this contention when it had the veteran undergo a lumbosacral spine radiology series in conjunction with his VA examination in January 2001. The results of that test were negative, no significant abnormalities were noted, and the VA examiner in January 2001 opined that a lumbar spine disc bulge was not found. Again, there is no evidence of disc pathology to warrant application of Diagnostic Code 5293 in this instance. Under Diagnostic Code 5295, a 10 percent rating is assigned when there is lumbosacral strain with characteristic pain on motion. A 20 percent evaluation is in order when there is lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position. A maximum schedular rating of 40 percent is warranted when disability is severe, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. There have been no findings of muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position so as to warrant a 20 percent rating for lumbosacral strain. 38 C.F.R. § 4.71a, Diagnostic Code 5295. Recent clinical findings show that the veteran had essentially normal range of motion of the lumbar spine, with forward flexion to 95 degrees, backward extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 35 degrees. There was no pain or discomfort on forward flexion. Further, this evidence does not show that motion is moderately limited to support a 20 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board finds that the effects of pain reasonably shown to be due to the veteran's service-connected low back disability are, however, already contemplated by the 10 percent rating under Diagnostic Code 5295, that contemplates characteristic pain on motion. In January 2001, the veteran had only mild discomfort on some ranges of motion, no gait abnormalities, and no muscle atrophy or wasting. Only mild tenderness of the lumbar spine was noted in June 2001. There is no indication in the current record that pain due to disability of the lumbar spine causes functional loss greater than that contemplated by the currently assigned 10 percent evaluation. 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). In view of the foregoing, the preponderance of the evidence is against an initial disability rating greater than 10 percent for lumbosacral strain. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. Left Testicular Varicocele VA promulgated new regulations amending the criteria for rating cardiovascular disorders, effective January 12, 1998. See 62 Fed. Reg. 65,207 (1997)(codified at 38 C.F.R. § 4.104, Diagnostic Code 7120). The new criteria apply in this instance, since the veteran's left testicular varicocele disability is being rated by analogy to varicose veins, and his claim was received after the new rating criteria went into effect. 38 C.F.R. § 4.20. Diagnostic Code 7120 directs that each extremity be separately evaluated and combined, using the bilateral factor if applicable. Asymptomatic, palpable, or visible varicose veins are noncompensable. Varicose veins manifested by intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery warrant a 10 percent rating. Varicose veins manifested by persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema are assigned a 20 percent rating. 38 C.F.R. § 4.104, Diagnostic Code 7120 (2002). Varicocele may also be rated by analogy to Diagnostic Code 7523, complete testis atrophy. 38 C.F.R. § 4.115b. Complete atrophy is assigned a noncompensable rating for one testis and a 20 percent rating for both testes. Special Monthly compensation is considered when atrophy occurs. Id. The veteran underwent a thorough examination in January 2001, at which time the examiner concluded that the veteran had residual episodic bilateral testicular pain, status post vasectomy. This diagnosis supports the veteran's symptoms of bilateral testicular pain, as stated in his contentions, testimony and at subsequent VA outpatient treatment in June 2001. Varicocele on the left was shown on ultrasound at the January 2001 examination, but the examiner described it as asymptomatic. The pain associated with the veteran's varicocele disability interferes with his normal activities. Based on this evidence, the Board finds that an initial 10 percent rating is warranted. Fenderson, supra. However, the clinical findings do not indicate a more serious problem consistent with persistent edema, or beginning stasis or pigmentation, or atrophy. Hence, a 20 percent rating is not warranted. Extraschedular rating In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits 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) (2002). "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." 38 C.F.R. § 3.321(b)(1) (2002). In this case, the RO has adjudicated the issue of entitlement to an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1). Although the Board has no authority to grant an extraschedular rating in the first instance, it may consider whether the RO's determination with respect to that issue was proper. See VAOPGCPREC 6-96; Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996) (BVA may affirm an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1)). The RO found that referral for extra-schedular consideration was not warranted in this case. The Board agrees. First, the schedular evaluations in this case are not inadequate. Higher schedular ratings are provided under the applicable diagnostic codes, but the medical evidence reflects that comparable 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 any periods of hospitalization for his service- connected disabilities. There is no evidence in the claims file to suggest that marked interference with employment is the result of the service-connected disabilities. In October 2002, he testified that he was employed as a computer technician. Thus, the Board finds that the absence of evidence presenting such exceptional circumstances preponderates against referring the claim for consideration of an extra-schedular rating for the service-connected disabilities. The disabilities are appropriately rated under the schedular criteria. ORDER An initial evaluation in excess of 10 percent for lumbosacral strain is denied. An initial evaluation of 10 percent, and not higher, for left testicular varicocele and residual episodic bilateral testicular pain, status post vasectomy, is granted, subject to the regulations pertinent to the disbursement of monetary funds. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.