Citation Nr: 0810213 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 94-22 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for epididymitis, including as secondary to residuals of a ventral meatotomy. 2. Entitlement to service connection for residuals of a left testicle excision, including as secondary to residuals of a ventral meatotomy. 3. Entitlement to a rating in excess of 20 percent from August 25, 1995 to October 5, 2005 for residuals of a ventral meatotomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1970 to December 1972. The case is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from a July 1992 rating decision of the Reno, Nevada Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for epididymitis and residuals of a left testicle excision and granted service connection for residuals of a ventral meatotomy, rated noncompensable from December 11, 1991. In August 1995, a Travel Board hearing was held before the undersigned. A transcript of the hearing is of record. In May 1999 and December 1999, the Board remanded the claims for further development. In a decision issued in February 2005, the Board denied the veteran's claims of service connection for epididymitis and residuals of left testicle excision, denied a compensable rating for residuals of a ventral meatotomy prior to August 25, 1995, and granted a 20 percent rating from August 25, 1995. The veteran appealed that decision to the Court. In January 2008, the Court issued an order that vacated the February 2005 Board decision and remanded the matter on appeal for readjudication consistent with the instructions outlined in the January 2008 Joint Motion by the parties. The veteran’s claims file is now in the jurisdiction of the Atlanta, Georgia RO. As noted, the Board's February 2005 decision denied a compensable rating for residuals of a ventral meatotomy prior to August 25, 1995 and granted a 20 percent rating from that date. The parties Joint Motion states that it does not want to disturb the Board's conclusion that the veteran was entitled to a compensable rating. Hence, as the Board's decision assigned an effective date of August 25, 1995 for the compensable rating, the noncompensable rating prior to that date is not before the Board and remains final. The Board also notes that an April 2006 rating decision assigned a 60 percent rating for residuals of a ventral meatotomy, effective from October 5, 2005. The veteran has not appealed that decision and it is not before the Board. The issue has been characterized accordingly. The issues of service connection for epididymitis and residuals of a left testicle excision are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action on his part is required. FINDINGS OF FACT 1. Prior to May 10, 2004, residuals of a ventral meatotomy were manifested by awakening to void three to four times a night and daily wearing of absorbent material; a daytime voiding interval less than one hour, awakening to void 4 to 5 times a night, or a need to change absorbent materials 2 to 4 times a day was not shown. 2. From May 10, 2004 until October 5, 2005 residuals of a ventral meatotomy are shown to have necessitated the wearing of absorbent materials that had to be changed 5 times a day. CONCLUSION OF LAW The veteran's residuals of a ventral meatotomy warrant "staged" ratings of 20 percent prior to May 10, 2004 and 60 percent from that date. 38 U.S.C.A. § 1155, (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code (Code) 7518 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Since the July 1992 rating decision that is on appeal granted service connection for residuals of a ventral meatotomy and assigned a rating for the award, statutory notice had served its purpose and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A July 2004 supplemental statement of the case (SSOC) provided notice on the "downstream" issue of entitlement to an increased initial rating and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Board notes its awareness of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), regarding notice required in an increased rating claim. While the Court's decision appears to be limited to a new claim for an increased rating and not to apply to an initial increased rating claim, the Board notes for the record that there was no prejudice to the veteran because he did not receive this notice prior to the initial adjudication of the case, as he subsequently received compliant notice in the July 2004 SSOC, as is required in an initial increased rating situation. 38 U.S.C.A. § 7105. He has had ample opportunity to respond/ supplement the record regarding his claim, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. All evidence relevant to the veteran's claim has been secured. The RO arranged for VA examinations in July 1997, April 2003, and May 2004. The veteran has not identified any other pertinent evidence that remains outstanding. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. § 4.1. When a question arises as to which of two ratings under a particular Code applies, the higher evaluation is assigned if the disability picture more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Court has held that in claims for increased ratings, "staged" ratings may be warranted if the claim involves the initial rating assigned with a grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). As explained in detail below, the Board has found that "staged" ratings are appropriate in this case. Here, the veteran's ventral meatotomy residuals are currently rated (by analogy to stricture of the urethra) 20 percent under 38 C.F.R. § 4.115b, Code 7518. Stricture of the urethra will be rated as a voiding dysfunction. 38 C.F.R. § 4.115b, Code 7518. Voiding dysfunction is further classified as involving urine leakage, urinary frequency, or obstructive voiding. 38 C.F.R. § 4.115a. For urine leakage, a 20 percent rating is warranted where the condition requires the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating is warranted where the condition requires the wearing of absorbent materials that must be changed 2 to 4 times a day. A 60 percent rating is warranted where the condition requires the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times a day. The criteria for rating urinary frequency specify that a 20 percent rating is warranted where there is a daytime voiding interval between one and two hours, or awakening to void three to four times per night. Id. A 40 percent rating is warranted where there is a daytime voiding interval less than one hour, or; awakening to void five or more times per night. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Initially, the Board notes that it has reviewed all of the evidence in the veteran's voluminous claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. At the August 1995 hearing, the veteran testified that he had urinary frequency of 4 or 5 times a day and that it was "maybe about 4 to 5 times at night." He reported wearing absorbent material on a daily basis. On July 1997 VA examination, the veteran reported a daytime voiding frequency of every three to four hours and waking up to void three to four times a night. On April 2003 VA examination the veteran reported awakening at night to urinate several times and frequently urinating during the day. On May 10, 2004 VA examination, the veteran reported urinating 9 times a day at intervals of 2 hours and 3 times during the night at intervals of 2 hours. He reported trouble starting urination and a weak urine flow. At the beginning of the examination report, the examiner noted the veteran required a change of absorbent material as often as 2 times a day; later in the examination report, it was noted he required a change of absorbent material as often as 3 times a day. He did not require the use of an appliance. A June 2004 letter from the May 2004 VA examiner indicates that the veteran had asked him to update his file and to change an answer in his history form to reflect that he has to change absorbent material 5 times a day. In a February 2006 statement, the veteran clarified that when he reviewed the May 2004 examination report, he noticed an error regarding how many absorbent pads he used a day and that he went to speak to the VA examiner to ask him to change his answer to reflect the correct number of absorbent pads worn a day. Prior to May 10, 2004 The record prior to May 10, 2004 reflects the veteran wore absorbent material on a daily basis; there was no evidence that he needed to change pads 2 to 4 times a day; hence, he was not entitled to an increased 40 percent rating based on voiding dysfunction prior to May 10, 2004. During the August 1995 hearing, the veteran testified that he had nighttime voiding "maybe about 4 to 5 times a night." This testimony reflects uncertainty from the veteran regarding how often he awoke to void and subsequent history provided during VA medical examinations does not support that he awakened to void 5 times during the night. Specifically, on July 1997 VA examination, he reported a nighttime voiding frequency of 3 to 4 times a night and on May 2004 VA examination, he reported nighttime voiding frequency of 3 times a night. Hence, the preponderance of the evidence is against a finding that the veteran had nighttime voiding five or more times a night. The evidence also does not reflect that the veteran experienced a daytime voiding interval of less than one hour. On July 1997 VA examination he reported a daytime voiding frequency of every 3 to 4 hours; on May 2004 VA examination, he reported a daytime voiding frequency of every 2 to 3 hours. Other evidence of record indicates frequent daytime and nighttime voiding, but does not provide specific time intervals to sufficiently determine the frequency. Hence, the preponderance of the evidence is against a rating in excess of 20 percent based on urinary frequency prior to May 10, 2004. There is no evidence the veteran experienced urinary retention requiring intermittent or continuous catheterization that would warrant a higher, 30 percent, rating for obstructed voiding prior to May 10, 2004. The preponderance of the evidence is against a rating in excess of 20 percent for residuals of a ventral meatotomy prior to May 10, 2004. From May 10, 2004 A June 2004 letter from the May 10, 2004 VA examiner indicates that the veteran requested that medical history provided on May 2004 VA examination be revised to show that the veteran changed absorbent material 5 times a day, rather than the 3 times a day reflected by the examination report. This letter and the subsequent February 2006 statement from the veteran shows that on May 10, 2004 VA examination he was changing absorbent material 5 times a day. Notably, frequency of absorbent material change is a finding that must essentially be based on self-report. There is nothing in the record to lead the Board to question the veteran's self- report regarding the frequency of his changing of absorbent materials, and his treating VA physician appears to have endorsed the self-report. Hence, he is entitled to a 60 percent rating from the date of the May 10, 2004 VA examination, as the June 2004 letter merely reflects a correction of information from that examination report. As 60 percent is the maximum schedular rating available under the relevant criteria, consideration of whether referral for extraschedular evaluation is necessary. However, there is no objective evidence or allegation in the record of 'marked' interference with employment or frequent hospitalizations due to residuals of a ventral meatotomy, or other factors of like gravity, which would suggest that referral for extraschedular consideration is indicated. See 38 C.F.R. § 3.321. ORDER "Staged" ratings (20 percent prior to May 10, 2004 and 60 percent from that date) are granted for residuals of a ventral meatotomy, subject to regulations governing payment of monetary awards. REMAND The veteran alleges that preexisting epididymitis was aggravated during service and that a left testicle excision performed in 1988 resulted from aggravation of epididymitis during service. He has alternatively alleged that these disabilities are secondarily related to service-connected residuals of a ventral meatotomy. A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111. Pursuant to 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). Epididymitis was not noted on service entrance examination and the veteran is presumed sound. However, the veteran has consistently reported a history of preexisting epididymitis and in the January 2008 Joint Motion, the parties did not dispute the Board's February 2005 finding that the record contained clear and unmistakable evidence that epididymitis pre-existed service. What remains at issue is whether there is clear and unmistakable evidence that preexisting epididymitis was not aggravated by the veteran's service and ultimately resulted in the post-service left testicle excision or whether epididymitis or left testicle excision is related to service-connected residuals of a ventral meatotomy. The Joint Motion also stated that the Board's decision did not adequately explain whether any relationship exists between the left testicle excision and epididymitis. After careful review of the record, the Board has determined that a remand for another examination and opinion is necessary to adequately respond to the Court Order and Joint Motion. The record reflects there may also have been some insufficiencies in the VCAA notice provided to the veteran (as the initial rating decision in this case was issued prior to enactment of the VCAA). As previously noted, a VCAA notice letter consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. VCAA notification letters were issued in February 2003 and September 2003. While these letters substantially complied with VCAA notice requirements and told the veteran the evidence he needed to submit to substantiate a service connection claim, they did not specifically inform him of the requirements for proving a claim of secondary service connection. They also did not tell him to submit to VA all pertinent evidence in his possession. Additionally, during the pendency of this appeal, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), the Court held that VCAA notice requirements apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Since the case is being remanded anyway, the RO will have the opportunity to correct these notice deficiencies. Accordingly, the case is REMANDED for the following: 1. The RO should send the veteran a letter providing him the notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and specifically advising him of the evidence required to support a claim of secondary service connection and that he should submit all pertinent evidence in his possession. The RO should also send notice regarding the rating of epididymitis and residuals of a left testicle excision and effective date of any awards as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). 2. The RO should then arrange for the veteran to be afforded a VA urology examination to assess epididymitis and residuals of a left testicle excision. The examiner should thoroughly review the veteran's claims file. The examiner must explain the rationale for all opinions given, considering textual evidence of record and accepted medical principles pertaining to the history, manifestations, clinical course, and character of epididymitis and left testicle excision. The examiner should explain the relationship, if any between the veteran's epididymitis during service and left testicle excision in 1988. The examiner should respond to the following questions: A) (1) Was there a measurable increase in the severity of preexisting epididymitis during service? (2) If there was a measurable increase in the severity of preexisting epididymitis during service, was it beyond that attributable to the natural progress of the disability? B) Is it at least as likely as not (a 50% or better probability) that recurrent epididymitis was (1) caused (proximately due to) or (2) aggravated by (and if so, to what degree?) service-connected residuals of a ventral meatotomy? C) Is it at least as likely as not (a 50% or better probability) that the veteran's left testicle excision was (1) caused (proximately due to) or (2) aggravated by (and if so, to what degree?) service- connected residuals of a ventral meatotomy? 3. The RO should then re-adjudicate the claims. If either remains denied, the RO should issue an appropriate SSOC and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs