Citation Nr: 0814702 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 97-28 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an increased rating for a left varicocele, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The veteran had active military service from June 1984 to May 1996. The veteran's appeal originally arose from a February 1998 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Lincoln, Nebraska. This matter comes before the Board of Veterans' Appeals (Board) by two orders and a memorandum decision of the United States Court of Appeals for Veterans Claims (Court). The first order, dated in March 2001, vacated that part of an October 2000 Board decision that denied service connection for hearing loss, vision problems, a skin disability, a bilateral ankle disability, and also denied higher ratings for service-connected maxillary sinusitis, irritable bowel syndrome (IBS), a bilateral knee disability, a left varicocele, pes cavus, and for a thoracic spine disability, and remanded the case for consideration of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In accordance with the Court's March 2001 order, in August 2002, the Board issued a decision denying service connection for hearing loss and ratings in excess of 10 percent for pes cavus and a left varicocele. The veteran's service connection claims for vision problems, a skin disability, and for a bilateral ankle disability, and his higher rating claims for maxillary sinusitis, IBS, a bilateral knee disability, and a thoracic spine disability were remanded to the RO for additional development. The Court's second order, dated in February 2003, vacated the August 2002 Board decision for consideration of the VCAA. In accordance with this order, in June 2003, the Board remanded all the issues to the RO. The veteran withdrew his appeal for service connection for vision problems in a written statement submitted in August 2003. Accordingly, this issue is no longer in appellate status. See 38 C.F.R. § 20.204 (2007). In an October 2003 rating action, the RO assigned a 10 percent rating to the veteran's service-connected IBS, effective from November 27, 2002. The RO also granted service connection for tinea cruris and for intertrigo, assigning separate zero percent ratings, effective from June 1, 1996. This decision was issued to the veteran and his representative in December 2003. The veteran disagreed with the October 2003 rating decision in March 2004, seeking higher ratings for both of his service-connected skin disabilities. In a September 2004 rating decision, the RO recharacterized both service-connected skin disabilities as a skin disability diagnosed as tinea cruris and intertrigo and assigned one 10 percent rating effective from June 1, 1996. See 38 C.F.R. § 4.14 (2007) (prohibiting the evaluation of the same disability under various diagnoses). In a VA Form 21-4138, Statement in Support of Claim, received by the RO in September 2004, the veteran withdrew his appeal for a higher rating for a service-connected skin disability. Accordingly, this issue is no longer in appellate status. By a November 2004 decision, the Board denied service connection for bilateral hearing loss and a bilateral ankle disability, and also denied higher ratings for a bilateral knee disability, a thoracic spine disability, pes cavus, and for a left varicocele. The Board assigned a 10 percent rating from June 1, 1996 to November 26, 2002, and a 30 percent rating from November 27, 2002, for the veteran's service-connected IBS. Finally, the Board remanded the veteran's higher initial rating claim for maxillary sinusitis to the RO for additional development. In an August 2006 memorandum decision, the Court affirmed the Board's November 2004 decision in all respects except for the denial of a higher rating for a left varicocele. The Court vacated that part of the Board's November 2004 decision that denied an evaluation in excess of 10 percent for a left varicocele, and remanded the case to the Board for compliance with the directives stipulated in the memorandum decision. By a March 2007 decision, the Board assigned a 60 percent rating prior to October 7, 1996, and a 30 percent rating thereafter, for maxillary sinusitis. In addition, the Board remanded the veteran's increased rating claim for a left varicocele to the RO. The purposes of this remand have been met. FINDING OF FACT The competent medical evidence indicates that the veteran's left varicocele is manifested by intermittent swelling, pain and tenderness; it is not productive of genitourinary or venous complications, or skin disease and it does not necessitate a truss or reduction; the varicocele symptoms are localized to the left testicle region and do not cause more than minimal functional impairment. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left varicocele have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.104, Diagnostic Code 7120; 4.114, Diagnostic Code 7338; 4115b, Diagnostic Code 7523; 4.118, Diagnostic Codes 7804, 7805 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. In the instant case, the Board finds that VA fulfilled its duties to the veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the July 2003 letter sent to the veteran by the RO adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id., at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in July 2003 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the veteran was effectively informed to submit all relevant evidence in his possession and received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. In this case, the decision from which the appeal arises, that is, the February 1998 rating decision, predated the effective date of the VCAA in November 2000. Thus, VCAA notice sent by the RO to the veteran in July 2003 obviously could not comply with the express timing requirements of the law as found by the Court in Pelegrini. However, the Court has held that a supplemental statement of the case that complies with applicable due process and notification requirements constitutes a readjudication decision. Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and readjudicating the claim in the form of a statement of the case to cure timing of notification defect). Here, the October 2003 and November 2007 supplemental statements of the case satisfy a readjudication decision as defined by the cited legal authority and they postdate the above notice letter. Providing the veteran with adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. With respect to the Dingess, 19 Vet. App. at 473, requirements, the veteran was provided with notice of the laws and regulations governing ratings and effective dates in a March 2006 letter, but such notice was post- decisional. See Pelegrini, supra. As to this timing deficiency, the Board is cognizant of recent Federal Circuit decisions pertaining to prejudicial error. Specifically, in Sanders v. Nicholson, 487 F.3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Veterans Court, the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the earlier holding of the Veterans Court in Sanders that an appellant before the Veterans Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide ant pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. (Emphasis added.) See also Simmons v. Nicholson, 487 F.3d 892 (2007). The Court has held that an error "whether procedural or substantive, is prejudicial when [it] affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). That is, "the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication." Id. "[A]n error is not prejudicial when [it] did not affect 'the essential fairness of the [adjudication],'" and non-prejudicial error may be proven by demonstrating "that any defect in notice was cured by actual knowledge on the part of the [veteran] that certain evidence (i.e., the . . . evidence needed to substantiate the claim) was required and that [he] should have provided it." Id., at 121; accord Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (determining that no prejudicial error to veteran resulted in defective VCAA notice when the veteran, through his counsel, displayed actual knowledge of the information and evidence necessary to substantiate his claim). Moreover, the Court has observed that "there could be no prejudice if the purpose behind the notice has been satisfied . . . that is, affording a claimant a meaningful opportunity to participate effectively in the processing of [the] claim. . . ." Mayfield, supra, at 128. The Board finds that the presumption of prejudice raised by the failure to provide timely notice of the Dingess requirements is rebutted because the preponderance of the evidence is against the claim for a rating in excess of 10 percent for a left varicocele, and renders moot any questions as to higher evaluations or effective dates. Such a lack of timely notice did not affect or alter the essential fairness of the RO's decision. While the veteran does not have the burden of demonstrating prejudice, it is pertinent to note that the evidence does not show, nor does the veteran contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. In Vazquez-Flores v. Peake, 22 Vet. app. 137 (2008), the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the Board is aware that the July 2003 VCAA letter does not contain the level of specificity set forth in Vazquez-Flores. However, the presumed error raised by such defect is rebutted because documentation in the claims file shows that the nature of the argument presented on behalf of the veteran displays actual knowledge of what is required to substantiate a claim for a rating in excess of 10 percent for a left varicocele, which includes demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the veteran's employment and daily life. The Board also notes that the statement of the case issued to the veteran and his representative includes the criteria for a rating in excess of 10 percent for a left varicocele. The veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the veteran of its duty to assist in obtaining records and supportive evidence, and the veteran received VA examinations in October 1996, November 1997, August 1998, September 2003, September 2007, and October 2007, which were thorough in nature and adequate for the purposes of deciding this claim. In the March 2007 remand decision, the Board incorrectly asked the examiner to distinguish symptoms and objective clinical findings attributable to the veteran's service- connected left varicocele and any symptoms and objective clinical findings due to any non-service-connected disability that may be present, to include specifying whether intertrigo and tinea cruris of the scrotum with satellite lesions was part and parcel of the service-connected left varicocele. The Board had incorrectly noted that the veteran's skin disease, diagnosed as intertrigo and tinea cruris, was non- service-connected, when it actually was service-connected. This service-connected skin disease has been rated 10 percent since June 1996 by analogy (38 C.F.R. § 4.20) under 38 C.F.R. § 4.118, Diagnostic Code 7806. There is no suggestion that the veteran has a skin disease involving the scrotum that is related to a varicocele. The examiner in October 2007 specifically reported that there was no eczema or ulceration in association with the varicocele. Under these circumstances, there was no Stegall violation (see Stegall v. West, 11 Vet. App. 268, 271 (1998)) by failing to address the veteran's intertrigo and tinea cruris of the scrotum (fungal infection of the groin) in conjunction with his claim for a higher rating for a left varicocele. Thus, the Board finds that the VA examinations dated in October 1996, November 1997, August 1998, September 2003, September 2007, and October 2007, provide sufficient information to rate the disability in accordance with all possible applicable rating criteria, and that to the extent necessary, the RO complied with the Board's March 2007 remand decision. 38 C.F.R. §§ 4.20, 4.104, Diagnostic Code 7120; 4.114, Diagnostic Code 7338; 4115b, Diagnostic Code 7523; 4.118, Diagnostic Codes 7804, 7805. Accordingly, it is the Board's determination that the medical evidence of record is sufficient to resolve this appeal, and the VA has no duty to provide another examination or a medical opinion. 38 C.F.R. §§ 3.326, 3.327 (2007). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 392-94. II. Factual Background The veteran's service medical records show that in August 1989, the veteran underwent surgical repair for a left varicocele. In October 1996, the veteran underwent a VA examination. At that time, the examiner noted the veteran's history of a varicocele and complaints of testicular pain. The physical examination showed that there was no evidence of any left- side testicular atrophy, but the varicocele was palpable with some vascular venous distention. The diagnosis was left varicocele with pain and tenderness noted. In a December 1996 rating action, the RO granted service connection for a left varicocele. At that time, the RO rated the left varicocele by analogy to the guidelines for rating an inguinal hernia, 38 C.F.R. § 4.114, Diagnostic Code 7388. A 10 percent disability rating was assigned, effective from June 1, 1996. A VA genitourinary examination was conducted in November 1997. At that time, the veteran stated that his testicles were always tender and occasionally ached. He indicated that he had experienced episodes of severe pain for minutes at a time. Upon physical examination, the examiner noted that the veteran's left testicle was exquisitely tender. The pertinent diagnoses were status post varicocelectomy and left scrotal swelling consistent with a varicocele, markedly tender. In August 1998, the veteran underwent a VA genitourinary examination. At that time, he stated that his sexual function was unimpaired. The physical examination showed that the veteran's left testicle was much larger than the right testicle and was slightly uncomfortable. The examiner reported that it appeared there were a varicocele present and possibly a hydrocele. The pertinent diagnoses were recurrence of a left varicocele and numerous involuntary emissions of prostate versus seminal fluid. A VA examination was conducted in September 2003. At that time, the veteran stated that his scrotum was enlarged. Upon physical examination, the veteran had a very large, irregular left-sided varicocele that was very tender to palpation, and the left testicle was very tender. The pertinent diagnosis was large left-sided varicocele. In a comment, the examiner noted that the veteran's complaints had interfered with the veteran's sex life and job. However, the context of the examiner's comments makes it clear that he was referring to a groin rash, not the veteran's varicocele. A private medical record shows that in April 2007, the veteran underwent an ultrasound of the scrotum/testicle for complaints of testicular pain. The ultrasound was interpreted as showing no testicular mass. The veteran's testicles appeared within normal limits. The testicular parenchyma appeared homogeneous, bilaterally. The epididymides, bilaterally, possessed small cysts in the region of the head of the epididymides. There was no left- sided hydrocele. There was a small right-sided simple hydrocele. There were bilateral varicosities and they appeared fairly symmetrical. There was no other abnormality. The diagnoses were the following: (1) bilateral symmetrical appearing varicoceles, (2) small simple appearing right-sided hydrocele, and (3) small bilateral epididymal cysts. In September 2007, the veteran underwent a VA genitourinary examination. At that time, the examiner noted that while the veteran was in the military, he underwent a left-sided varicocelectomy. In regard to the veteran's current symptoms, the veteran had dribbling, but that was likely due to benign prostate hypertrophy and not the testicular issue. There was no urinary leakage, obstructed voiding, urinary tract infection, renal dysfunction or renal failure, or erectile dysfunction. Ejaculation was normal. The bladder examination was normal. There was no peripheral edema and the penis examination was normal. The testicles were abnormal in that there was a left varicocele and a right varicocele. There was mild to moderate tenderness noted. The diagnosis was bilateral varicoceles. The examiner noted that there were no effects of the veteran's problem on usual daily activities. According to the examiner, the veteran worked at a bank as an investigator. The examiner reported that there were no significant effects of the veteran's problem on employment. A VA genitourinary examination was conducted in October 2007. At that time, the veteran stated that his left-sided varicocele caused achiness, cramping, and pain. The veteran described it could be exacerbated by increased levels of activity such as exercise. He reported that he had had no surgical procedures regarding the varicocele since the in- service surgery. He indicated that he had undergone two vasectomies in the past. According to the veteran, the symptoms of pain and achiness did not prevent him from participating in any particular activity. The examiner noted that there were no functional limitations to activities of daily living or occupational duties as a result of the veteran's varicocele. According to the examiner, other than the varicosity itself, there was no noted swelling or edema. The veteran did not utilize any treatment specific for the varicocele. He described symptom relief was often a matter of changing position and resting. Upon physical examination, the left varicocele was palpable with some associated tenderness. The varicocele was not visible by visual inspection alone. The varicocele would be considered a grade two in that it must be palpated to be identified, made more prominent with valsalva, and not identified by visual inspection alone. There was no eczema, ulceration, edema, induration, or pigmentation in association with the varicocele. The diagnosis was left varicocele. By a November 2007 rating action, the RO granted the veteran's claim for entitlement to service connection for a right varicocele, as secondary to the service-connected left varicocele. III. Analysis Disability ratings are determined by the application of VA's SCHEDULE FOR RATING DISABILITIES (Rating Schedule) codified in 38 C.F.R. Part 4 (2007), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with the impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2007). Where entitlement to compensation has already been established and an increase in the severity of the disability is at issue, as in this case, "the relevant temporal focus . . . is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mayfield, --Vet. App.--, 2007 Wl 4098218, *3; see also Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this regard, the Court has recognized that "[i]f VA's adjudication of any increased-rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased-rating claim was filed until a final decision on that claim is made." Hart, supra, at *3. Accordingly, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms what would warrant different ratings." Id. Regulations require that where there is a question as to which of two evaluations is to 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 (2007). Where the particular disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27 (2007); see also Lindeman v. Principi, 3 Vet. App. 345 (1992); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The RO has rated the veteran's varicocele, in part, by analogy to an inguinal hernia. See 38 C.F.R. §§ 4.20, 4.114, Diagnostic Code 7399-7338. By regulatory amendment effective July 2, 2001, changes were made to the schedular criteria for evaluating diseases of the digestive system. Where the law or regulations governing a claim change while the claim is pending, as in the veteran's case, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). In deciding such case, the Board must determine whether the previous or revised version is more favorable to the veteran. However, if the revised version is more favorable, the retroactive reach of that regulation can be no earlier than the effective date of the change, and the Board must apply only the earlier version of the regulation for the period prior to the effective date of the change. See 38 U.S.C.A. § 5110(g); see also VAOPGCPREC 3-2000. In the veteran's case, neither version is more advantageous to the veteran in that the criteria for evaluating an inguinal hernia are identical in both the old and revised versions. See 38 C.F.R. § 4.114, Diagnostic Code 7338 (2000 & 2001). Hence, there is no due process bar for the Board to proceed with the appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under Diagnostic Code 7338, a 10 percent rating is warranted for a recurrent postoperative inguinal hernia that is readily reducible and well supported by a truss or belt. A 30 percent rating is warranted for a small recurrent postoperative or unoperated irremediable, inguinal hernia, which is not well supported by a truss or is not readily reducible. 38 C.F.R. § 4.114, Diagnostic Code 7338 (2007). The Board has also considered the alternative possibility of an evaluation by rating by analogy as a scar, testicular disorder, genitourinary disorder and varicose veins, albeit a tender scar is the only disability that closely resembles the veteran's varicocele with scrotal pain and tenderness. The Rating Schedule further provides a compensable rating for superficial scars when there is evidence of tenderness and pain on objective demonstration (10 percent) or limitation of function of the part affected. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805 (2007). The Rating Schedule provides a 20 percent disability rating for complete atrophy of both testes and a zero percent rating for the complete atrophy of only one testicle. 38 C.F.R. § 4.115b, Diagnostic Code 7523 (2007). A 30 percent disability rating is provided for the removal of both testicles and the removal of one testicle is noncompensable. 38 C.F.R. § 4.115b, Diagnostic Code 7524 (2007). The veteran contends that his service-connected left varicocele has been and continues to be more disabling than evaluated. He indicates that he has chronic pain and that increased levels of activity aggravated the pain. In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event. However, symptoms must be viewed in conjunction with the objective medical evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 10 percent for a left varicocele. The Board acknowledges that the veteran's varicocele and scrotum were described as large in the September 2003 VA examination report. However, that examination and the other pertinent VA examinations of record dated in October 1996, November 1997, August 1998, September 2007 and October 2007 are negative for any evidence that the veteran's varicocele, though at times large, has required, or resisted, any treatment such as reduction or a truss. The competent medical evidence also indicates that since the veteran's in-service left-sided varicocelectomy, the veteran's varicocele has not required additional surgical treatment. Therefore, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 7338. As noted above, the Board has considered rating the veteran's disability under all other potentially appropriate diagnostic codes. As the veteran's left varicocele has not resulted in the complete atrophy or loss of both testes, a compensable disability rating under diagnostic codes 7523, 7524 is not warranted. In addition, the Board notes that 38 C.F.R. § 4.118, Diagnostic Code 7804, provides a maximum 10 percent disability rating for superficial scars that are tender and painful on objective demonstration. The veteran suffers from a recurrence of a status post left varicocele that is observed to be objectively tender and painful, but the current 10 percent disability rating takes such into account and that 10 percent rating is the maximum evaluation available under this code. The Board has considered the appropriateness of an evaluation under the rating codes for varicose veins and post-phlebitic syndrome, but finds that such criteria are not applicable, even by analogy, as the rating criteria in these codes are applicable to extremities and not a testicle. See 38 C.F.R. §§ 4.20, 4.104, Codes 7120, 7121. There is no medical evidence to suggest additional venous pathology due to a varicocele. Benign neoplasms of the genitourinary system are rated as voiding dysfunction or renal dysfunction, whichever is predominant. Diagnostic Code 7529. There is no suggestion of renal or voiding dysfunction attributable to the veteran's varicocele. In summation, the competent medical evidence indicates that the veteran's left varicocele is manifested by intermittent swelling, pain and tenderness but it is not productive of genitourinary or venous complications, or skin disease and it does not necessitate a truss or reduction. The varicocele symptoms are localized to the left testicle region and do not cause more than minimal functional impairment. Under these circumstances, a rating in excess of 10 percent for a left varicocele is not warranted. 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.104, Diagnostic Code 7338; 4.118, Diagnostic Codes 7804, 7805. In light of the above, the Board finds that the preponderance of the evidence is against the veteran's claim for an increased rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Extraschedular Rating The Board finds that there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the veteran's left varicocele which would take the veteran's case outside the norm so as to warrant an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an evaluation in excess of 10 percent for a left varicocele is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs