Citation Nr: 0838637 Decision Date: 11/07/08 Archive Date: 11/18/08 DOCKET NO. 06-06 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased evaluation for chronic epididymitis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from January 1989 to February 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that the veteran's original claim was previously remanded to the RO via the Appeals Management Center (AMC) for further development by the Board in February 2008. It is noted that appellant is being paid special monthly compensation for the anatomical loss of a creative organ. FINDINGS OF FACT 1. Between April 7, 2004 and October 14, 2004, the veteran's chronic epididymitis was manifested by urinary frequency, occasional dribbling on urination and nocturia of about four times a night. 2. Between October 15, 2004 and November 8, 2005, the veteran's chronic epididymitis was manifested by urinary frequency with awakening to void approximately 10 to 15 per night. 3. From November 9, 2005 the veteran's chronic epididymitis was manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed more than four times per day. CONCLUSIONS OF LAW 1. Between April 7, 2004 and October 14, 2004, the criteria for an evaluation in excess of 20 percent for chronic epididymitis have not been met. 38 U.S.C.A. § 1131, 5107 (West 200); 38 C.F.R. § 3.321(b)(1), 4.7, 4.20, 4.115a,b, Diagnostic Code 7525 (2008). 2. Between October 15, 2004 and November 8, 2005, the criteria for a 40 percent evaluation for chronic epididymitis have been met. 38 U.S.C.A. § 1131, 5107 (West 200); 38 C.F.R. § 3.321(b)(1), 4.7, 4.20, 4.115a,b, Diagnostic Code 7525 (2008). 3. From November 9, 2005, the criteria for a 60 percent evaluation for chronic epididymitis have been met. 38 U.S.C.A. § 1131, 5107 (West 200); 38 C.F.R. § 3.321(b)(1), 4.7, 4.20, 4.115a,b, Diagnostic Code 7525 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate form or completeness of the application. VA notified the veteran in April 2004, December 2004, April 2005, March 2006, and March 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part the VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. While the appellant may not have received full notice prior to the initial decision, after notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claim was readjudicated. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. In view of the contentions advanced and the arguments made, it is clear that the appellant has actual knowledge of what he needs to show to warrant an increased rating. Thus, it appears that the guidance of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), has been met. Analysis By a rating decision dated March 2001, the RO granted service connection for chronic epididymitis, rated at 10 percent, and effective January 8, 2001. A January 2002 rating decision granted an increased rating of 30 percent for chronic epididymitis, effective January 8, 2001. An evaluation of 100 percent was also assigned based on surgical or other treatment necessitating convalescence, effective from June 20, 2001 to August 31, 2001. A 10 percent rating was assigned as of September 1, 2001. In April 2004, the veteran submitted a claim for an increased rating for his chronic epididymitis. A June 2004 rating decision granted an increase to 20 percent, effective April 7, 2004. The veteran appealed, asserting that his disability warranted a higher rating. VA treatment records dated January to March 2004 reflected treatment for chronic epididymitis. A March 2004 record indicated that the veteran complained of urinary frequency, but denied incontinence. A March 2004 sonogram showed a status post surgical removal of the right testis and epididymis. The veteran was afforded a VA examination in May 2004. The examiner noted that the veteran underwent surgery for the removal of the right epididymis in June 2001. Shortly thereafter, the veteran had complications and returned for removal of the right testicle. The veteran complained of constant pain in both scrota that was aggravated by prolonged sitting for more than an hour, or by walking more than 100 yards. Examination revealed nocturia around 4 times and some hesitancy and dysuria but no burning. The veteran had occasional dribbling on urination but bowel functions were normal. Sexual function was ok but inconsistent due to pain. Ejaculation was painful most of the time. The left testicle was slightly enlarged and moderately tender on palpation. There was no active inguinal hernia. A diagnosis f bilateral chronic epididymitis was provided. The examiner commented that the veteran was moderately impaired in fulfilling his job duties due to inability to sit for prolonged periods of time, but that he reported being able to perform acceptably using analgesics and other prescribed medications. VA treatment records dated March 2004 to July 2005 reflected treatment for chronic epididymitis. A March 2004 record indicated complaints of pain and urinary frequency. The veteran denied incontinence, fever, chills, or vomiting. A VA treatment record dated October 2004 noted complaints of urinary frequency about 10 to 15 times a night. The veteran was prescribed Ditropan to help with the frequent urination. A November 2004 noted that the veteran had been referred for polyuria and to rule out diabetes insipidus. A follow-up endocrinology report indicated no good answer was found to explain the veteran's polyuria. The veteran was afforded another VA examination in January 2005. The veteran complained of continued pain in the right scrotum, which was tender as well. Additionally, the veteran stated that he had swelling and continual pain in the left epididymis. The related symptom of polyuria developed some time after his surgery and had become quite severe. Examination revealed that the right hemiscrotum was empty but tender to palpation. The left testicle appeared normal but the left epididymis was very tender to palpation and was slightly enlarged. The examiner also noted that the veteran walked with an abnormal gait due to the pain in his scrotum. An impression of chronic bilateral epididymitis status post right orchidectomy was provided. In a March 2005 statement, the veteran indicated that he used absorbent materials, usually going through about three changes a day. He also stated that he used adult diapers during the nights or long day trips. The veteran submitted VA treatment records dated August to December 2005. An October 2005 emergency room report by a physician's assistant reflected an impression of urinary frequency secondary to chronic epididymitis. A November 2005 record revealed that the veteran reported using incontinence pads, and needing to change the pads about five times a day. A December 2005 treatment record indicated further complaints of frequent urination. The veteran also stated that he had to use incontinence pads regularly. The veteran was afforded a final VA examination in March 2008. The veteran reported using seven to eight urinary pads during the day and using one at night. He also stated that he urinated about five times a day and gets up approximately 10 times per night. The veteran also reported continued chronic pain in both the right and left sides. Examination revealed an absent right testicle due to his orcheiectomy and a left testicle that was tender to palpation. The examiner provided an impression of chronic epididymitis requiring removal of epididymis leading to a torsed testicle which required an orchiectomy. The orchiectomy resulted in chronic urinary problems and erectile dysfunction as well as sterility. After a review of the claims file, the examiner opined that it was at least as likely as not that the veteran's bladder complaints were the result of the surgery required to treat his epididymitis. Since his surgery, the veteran has had all of his bladder and erectile issues. The present appeal involves the veteran's claim that the severity of his service-connected chronic epididymitis warrants higher disability ratings. 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 v. Derwinski, 1 Vet.App. 589, 594 (1991). 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran's epididymitis is currently rated at 20 percent under 38 C.F.R. § 4.115b, Diagnostic Code 7525, pertaining to chronic epididymo-orchitis. Diagnostic Code 7525 provides that such disability is rated as urinary tract infection. Under 38 C.F.R. § 4.115a, a 30 percent rating is warranted for a urinary tract infection with recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous investigative management. As there is no evidence of frequent hospitalization or continuous investigative management, a rating in excess of 20 percent is not warranted under 38 C.F.R. § 4.115a for a urinary tract infection. However, the Board notes that the evidence shows that the veteran's disability is likely more analogous to voiding dysfunction under the provisions of 38 C.F.R. § 4.115a. This appears to be the principal manifestation of the disorder as determined by subjective complaints and the medical evidence. Under 38 C.F.R. § 4.115a pertaining to evaluation of voiding dysfunction, a 60 percent evaluation is warranted for continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence: requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times a day. A 40 percent rating is warranted for continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence: requiring the wearing of absorbent materials which must be changed 2 to 4 times a day. A 20 percent rating is warranted for voiding dysfunction that requires the wearing of absorbent materials which must be changed less than 2 times per day. Additionally under the provisions of 38 C.F.R. § 4.115a pertaining to urinary frequency, a 40 percent rating is warranted daytime voiding interval less than one hour, or; awakening to void five times or more per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or; awakening to void three to four times a night. VA treatment records dated January to March 2004 noted that the veteran denied any incontinence. Additionally, the March 2004 VA examination noted some occasional dribbling on urination. An October 2004 VA treatment record noted complaints of urinary frequency of about 10 to 15 times a night and Ditropan was prescribed to help with the veteran's frequency. However, during his January 2005 VA examination, the examiner noted that the veteran's related symptom of polyuria developed sometime after his surgery and had become quite severe. In March 2005, the veteran first reported using absorbent materials, going through approximately three changes a day. An October 2005 VA emergency room report noted urinary frequency secondary to chronic epididymitis, and a November 2005 record indicated that the veteran used incontinence pads, with approximately five changes per day. The March 2008 VA examiner similarly noted that the veteran reported using seven to eight urinary pads during the day and one at night. The veteran also reported getting up ten times a night to urinate. The VA examiner opined that the veteran's bladder complaints were the result of his surgery required to treat his epididymitis. Based on the October 2004 treatment record in which the veteran reported awakening 10 to 15 times a night to urinate, as well as subsequent records and VA examinations, the veteran's disability picture meets the criteria for the maximum 40 percent rating under 38 C.F.R. § 4.115a for urinary frequency. Additionally, the Board notes that a November 2005 VA treatment record indicated that the veteran used about five incontinence pads per day. The March 2008 VA examiner further noted that the veteran was using about seven to eight pads a day. As such, based on the November 2005 treatment record, the veteran's disability picture meets the criteria for the maximum 60 percent rating under 38 C.F.R. § 4.115a for voiding dysfunction. The above determinations are based upon consideration of applicable rating provisions. There is no showing that the veteran's genitourinary disability reflects so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). ORDER Between April 7, 2004 and October 14, 2004, a rating in excess of 20 percent for chronic epididymitis is denied. Between October 15, 2004, and November 8, 2005, a 40 percent rating for urinary frequency related to chronic epididymitis, is granted subject to the laws and regulations governing the award of monetary benefits. Effective November 9, 2005, a 60 percent rating for voiding dysfunction related to chronic epididymitis, is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs