Citation Nr: 1120198 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 06-35 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a compensable rating for residuals of an injury to the right testicle. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from July 1958 to June 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran appeared at a Travel Board hearing before a Veterans Law Judge in July 2009. This Judge has since retired from the Board, and the Veteran indicated that he did not wish to have a new hearing before another Veterans Law Judge. A transcript of the July 2009 hearing is of record. The case was remanded in October 2010 for evidentiary development. All actions requested by the remand have been accomplished, and the case is ripe for appellate review. FINDING OF FACT The Veteran has pain in his right testicle, and has bulky spermatic cords; there is no evidence of atrophy or loss of the testicle, and the condition does not require long-term drug therapy, hospitalization, and/or intensive medical management. CONCLUSION OF LAW The criteria for a compensable rating for residuals of an injury to the right testicle have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.20, 4.115a, 4.115b, Diagnostic Codes 7523-7525 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 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 & Supp. 2010), 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) (2010). 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 a claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. In order to meet the requirements of 38 U.S.C.A. § 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) and, inform the claimant about the information and evidence the claimant is expected to provide. Although no longer required, in this case it was requested that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, 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 VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the Veteran on how VA determines a disability rating and an effective date for the award of benefits. Id. In this case, the Veteran was informed about the information and evidence not of record that is necessary to substantiate his claim for a higher rating. In addition, the Veteran received notice regarding the evidence and information needed to establish a disability rating and effective dates, as outlined in Dingess-Hartman. The Veteran is represented by the Veterans Service Organization of his state, and that organization is presumed to have knowledge of what is necessary to substantiate a claim for a higher rating for residuals of a testicular injury. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records, including VA examination and ultrasound reports. There is no indication of any additional relevant evidence that has not been obtained. With respect to the clinical examinations, the Board finds that the Veteran was provided thorough VA examinations which are adequate for resolving the issue of etiology; there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2010). Legal Criteria-Initial Ratings/General Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7. For claims for increased rating which do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Analysis The Veteran in this case alleges that his service-connected residuals of an injury to the right testicle are so severe as to warrant compensation. Service connection was granted for this disorder in a 1961 rating decision, with service connection having been in effect since the day of separation in June 1961. He now contends that his disability has increased in severity. The Veteran was first examined in connection with this claim in April 2006. His testicles were bilaterally descended in the scrotal sac. The diagnosis was a remote history of testicular injury, with no specification as to the type. The Veteran was undergoing treatment for prostate cancer at the time, which is not service connected. The Veteran has maintained that he has had increased pain in his testicle since this examination, and he was afforded a second examination in connection with this claim in March 2010. The examiner determined that there was tenderness and fullness in both of the epididymides, with the feeling being more bulky on the right. A review of the surgical history noted that the Veteran exhibited some scarring on his testicle in 1960 after in-service personnel conducted an exploration. The examiner believed that the current symptoms were potentially epididymitis, and he ordered an ultrasound to evaluate the condition. Following a Board remand of October 2010, the copies of the Veteran's March 2010 ultrasound were located and attached to the claims file. The report stated that the Veteran had bulky spermatic cords bilaterally, with no other indications of abnormality. There was no epididymitis noted on ultrasound, with the bulky spermatic cords being the only abnormal indication. The examiner who had conducted the March 2010 VA examination reviewed the ultrasound reports, and stated in January 2011 that there was no evidence of hydrocele, cystocele, or of malignancy. He stated that there were no changes necessary to the March 2010 examination report based on the results of the ultrasound. There are no specific rating criteria for residuals of a testicular injury, to include bulky spermatic cords. As such, the Veteran must be rated under diagnostic criteria that best approximates his disability picture. See 38 C.F.R. § 4.20. In so doing, the Board notes the ratings available in Code 7523 and 7524, which address testicular atrophy and loss of the testicles respectively, as well as Code 7525, which addresses chronic epididymo-orchitis. See 38 C.F.R. § 4.115b, Diagnostic Codes 7523-7525. With respect to Codes 7523 and 7524, as there is only one service-connected testicle, the maximum schedular rating for atrophy-like or loss-like symptoms is a noncompensable rating. Indeed, should the Veteran have had his right testicle completely removed, he would still only be entitled to a noncompensable rating under this criteria. Id. With regard to the Veteran's service-connected testicular disability as akin to epididymo-orchitis, the Board notes that Code 7525 requires a rating under the criteria applicable for urinary tract infections. See 38 C.F.R. § 4.115b, Diagnostic Code 7525. Under that Code, a 10 percent rating is assigned when the Veteran requires long-term drug therapy, has 1-2 hospitalizations per year, and/or requires intermittent intensive management. See 38 C.F.R. § 4.115a. A maximum 30 percent evaluation is assigned when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times a year), and/or requiring continuous intensive management. Id. The Veteran's chief complaint is pain in his right testicle, with noted bulkiness and tenderness in the structures surrounding that organ. There is no evidence of hospitalization as due to the disability, and there is no indication of long-term drug therapy or intensive management used in the combating of his testicular symptoms. As such, the Veteran has not met the requirements for a compensable rating under Code 7525. See 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7525. Moreover, only the injury to the right testicle is service connected. Thus, any atrophy or internal scarring noted, while productive of pain, can only be productive of a noncompensable rating. See 38 C.F.R. § 4.115b, Diagnostic Codes 7523, 7524. As this is the case, there is no entitlement to a compensable rating under any of the applicable schedular criteria. The Veteran's testicular disability is not so unique as to be outside of the norm, and there is nothing in the evidentiary record to suggest that the rating assigned under the schedular criteria does not fully contemplate the severity of the Veteran's disability picture. As this is the case, there is no need for a remand to the Director of VA's Compensation and Pension Service for consideration of an extraschedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); see also Thun v. Peake, 22 Vet. App. 111 (2008). In light of the above, the Board must deny the claim for an increase in rating. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also 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, 55 (1990). ORDER Entitlement to a compensable rating for residuals of an injury to the right testicle is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs