Citation Nr: 0811815	
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  04-44 317	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUE

Entitlement to a compensable evaluation for hypoplastic left 
testis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Kelli A. Kordich, Counsel


INTRODUCTION

The veteran served on active duty from November 1977 to May 
1983.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2004 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
San Diego, California, which denied the benefit sought on 
appeal.  


FINDING OF FACT

The veteran's hypoplastic left testis have been manifested by 
subjective complaints of pain and objective indications of 
tenderness.  There is no evidence of atrophy of both 
testicles. 


CONCLUSION OF LAW

The criteria for a compensable disability rating for 
hypoplastic left testis have not been met.  38 U.S.C.A. §§ 
1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.159, 3.321, 4.1-4.14, 4.115b, Diagnostic Code 7523 
(2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Analysis

Disability evaluations are determined by the application of 
the Schedule For Rating Disabilities, which assigns ratings 
based on the average impairment of earning capacity resulting 
from a service-connected disability.  38 U.S.C.A. § 1155; 38 
C.F.R. Part 4.  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.

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition. Schafrath, 1 Vet. 
App. at 592.  However, where an increase in the level of a 
service-connected disability is at issue, the primary concern 
is the present level of disability. Francisco v. Brown, 7 
Vet. App. 55 (1994).

By a rating decision dated in August 1993, the veteran was 
granted service connection for a left testicle condition and 
assigned a noncompensable disability evaluation effective 
July 13, 1993.  This disability evaluation has remained in 
effect since that date.

Under Diagnostic Code 7523, complete atrophy of one testicle 
warrants a noncompensable rating.  Complete atrophy of both 
testicles warrants a 20 percent rating, with consideration 
for special monthly compensation.  38 C.F.R. § 4.115(b) 
(2007).

December 2003 VA outpatient treatment records show the 
veteran complained of left testicle pain, but no trouble with 
urination or bowel movements.  In January 2004, the veteran 
complained of testicular pain.  There was no urinary urgency, 
frequency, or hesitancy reported.  The veteran did not want 
to talk about sexual dysfunction.  The diagnosis indicated 
unclear etiology concerning the complaint of left testicle 
pain.

A January 2004 VA examination noted examination of the penis, 
testicles, epididymi and spermatic cords were entirely normal 
with exception of a total absence of the left testicle, a 
minimal degree of tenderness in the right vas deferens and a 
slight enlargement of the right epididymis.  Examination of 
the rectum and anus was entirely within normal limits and the 
prostate and seminal vesicles were normal.  

While the veteran in this case has continued to complain of 
testicular pain, there is no evidence of atrophy of both 
testicles, or any other sequelae aside from the pain. 
Accordingly, a compensable rating under Diagnostic Code 7523 
is not warranted.

As the preponderance of the evidence is against the claim for 
an increased rating, the "benefit-of-the-doubt" rule does not 
apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); 
Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990).

Duties to notify and assist

The VA is required to assist a claimant in obtaining evidence 
necessary to substantiate a claim but is not required to 
provide assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  The VA is required to notify a claimant and the 
claimant's representative, if any, of any information, and 
any medical or lay evidence, not previously provided to the 
Secretary that is necessary to substantiate the claim.  As 
part of the notice, the VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, the VA will attempt to 
obtain on behalf of the claimant.  In addition, the VA must 
also request that the claimant provide any evidence in the 
claimant's possession that pertains to the claim.

In addition, the Board notes that the United States Court of 
Appeals for Veterans Claims (Court) has held that the plain 
language of 38 U.S.C.A. § 5103(a) requires that notice to a 
claimant be provided "at the time" of, or "immediately 
after," the VA's receipt of a complete or substantially 
complete application for VA-administered benefits.  Pelegrini 
v. Principi, 18 Vet. App. 112, 119 (2004).

In February 2004, October 2005, March 2006, and June 2007 
letters the RO sent the veteran the required notice.  The 
letters specifically informed him of the type of evidence 
needed to support the claim, who was responsible for 
obtaining relevant evidence, where to send the evidence, and 
what he should do if he had questions or needed assistance.  
He was told to submit all pertinent evidence he had in his 
possession pertaining to the claim.  See Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  

In the present appeal, although the veteran was not 
specifically provided the notice required by Dingess v. 
Nicholson, 19 Vet. App. 473 (2006) until March 2006, the 
Board finds that there is no prejudice to the veteran in 
proceeding with the issuance of a final decision.  See 
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the 
Board addresses a question that has not been addressed by the 
agency of original jurisdiction, the Board must consider 
whether the appellant has been prejudiced thereby).  In the 
instance in which the Board has assigned a higher disability 
evaluation, the agency of original jurisdiction will be 
responsible for addressing any notice defect with respect to 
the effective date elements when effectuating the award.  
With respect to the claim that has been denied, no disability 
ratings or effective dates will be assigned, so there can be 
no possibility of any prejudice to the veteran in not 
notifying him of the evidence pertinent to these elements.

To the extent that the veteran should have been provided the 
notice required by Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008), concerning the claim for his claim for an increased 
disability evaluation not generated from an initial grant of 
service connection, the Board concludes that he was not 
prejudiced in this instance, as he was given specific notice 
concerning the rating criteria for the disability at issue in 
both the rating decision and statement of the case.  
Consequently, he had actual notice of the specific rating 
criteria for the disability, and why a higher rating had not 
been assigned, as well as an opportunity to present evidence 
and argument to support a higher rating. In this case the 
veteran received the required notice prior to the adverse 
rating action that is the subject of this appeal.  

With respect to VA's duty to assist the appellant, the RO has 
obtained the veteran's VA treatment records and VA 
examination.  The veteran has been accorded ample opportunity 
to present evidence and argument in support of the appeal.   
Significantly, neither the veteran nor his representative has 
identified, and the record does not otherwise indicate, any 
additional pertinent records.  

In sum, the Board is satisfied that the originating agency 
properly processed the veteran's claim after providing the 
required notice and that any procedural errors in the 
development and consideration of the claims by the 
originating agency were insignificant and non-prejudicial to 
the veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  




ORDER

Entitlement to a compensable disability evaluation for 
hypoplastic left testis is denied.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs