Citation Nr: 1139111 Decision Date: 10/20/11 Archive Date: 10/25/11 DOCKET NO. 06-26 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of a left varicocele with chronic testicular pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from May 2003 to June 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2010, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. The Veteran was scheduled for a hearing before a Veterans Law Judge at the RO in August 2007. The Veteran failed to appear for the hearing and has not provided good cause for his non-attendance. He has also not requested that the hearing be rescheduled. Thus, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702 (d) (2011). The issues of entitlement to service connection for an acquired psychiatric disorder and erectile dysfunction, to include as secondary to service-connected residuals of a left testicle varicocele, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDING OF FACT Throughout the claims period, the Veteran's residuals of a left varicocele have manifested prominent veins with chronic testicular pain and functional limitations with a well-healed surgical scar; there is no arterial disruption, dermatological symptoms, or kidney or voiding dysfunction. CONCLUSION OF LAW The schedular criteria for an initial rating of 20 percent, but not higher, for residuals of a left varicocele with chronic testicular pain have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.20, 4.104, 4.115a, 4.115b, 4.118, Diagnostic Codes 7801-7805 (2002), 7120, 7523, 7525 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for residuals of a left varicocele with chronic testicular pain was granted in the January 2005 rating decision on appeal. An initial 10 percent evaluation was assigned effective June 24, 2003. The Veteran contends that an increased initial rating is warranted as his disability is productive of pain and functional effects on his ability to play sports, run, interact with his children and perform at work. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's disability is not listed in the Rating Schedule and is currently evaluated as 10 percent disabling by analogy to Diagnostic Code 7120 for varicose veins. Under this diagnostic code, varicose veins with findings of intermittent edema of extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery, are rated 10 percent disabling. Varicose veins with findings of persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, are rated 20 percent disabling. Varicose veins with findings of persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration, are rated 40 percent disabling. Varicose veins with findings of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration, are rated 60 percent disabling. Finally, varicose veins with findings of massive board-like edema with constant pain at rest are rated 100 percent disabling. 38 C.F.R. § 4.104, Diagnostic Code 7120 (2011). The Board finds that the evidence supports the granting of an increased 20 percent initial rating for the Veteran's service-connected left testicle disability. While the Veteran has not manifested symptoms of varicose veins such as persistent edema, stasis pigmentation, or eczema, the Board notes that his disability is rated by analogy to this condition. Based on the physical findings noted by the record and the Veteran's complaints of pain and functional impairment, the Board finds that the disability most nearly approximates a 20 percent rating under Diagnostic Code 7120. The objective evidence of record notes findings of painful prominent testicular veins throughout the claims period. Upon VA examination in August 2003, the Veteran's left testicle manifested multiple palpable varicosities with similar findings noted by a private physician in July 2003. The Veteran began treatment at the Memphis VA Medical Center (VAMC) in June 2005 and underwent a left laparoscopic varicocelectomy in January 2006. A scrotal ultrasound performed in March 2006 indicated prominent veins on the left testicle with normal arterial testicular flow. In April 2006, the Veteran's VA urologist opined that the most likely cause of the Veteran's testicular pain was nerve inflammation that could take years to resolve and constant scrotal support was recommended. Another scrotal ultrasound performed in conjunction with the August 2010 VA examination showed a possible minimal increase in the size of the left testicular veins. In addition to the objective findings contained in the record, the Veteran has also consistently reported the presence of left testicular pain resulting in multiple functional impairments. During both VA examinations and while receiving VA treatment at the Memphis VAMC, he complained of pain that impacted his ability to work, and interfered with his ability to walk, run, and interact with his family. The Veteran has also required narcotic pain medication to treat his service-connected disability. Based on the physical findings of prominent left testicle veins and the Veteran's credible complaints of pain with functional effects including interference at work, the Board finds that the residuals of a left varicocele most nearly approximate the criteria associated with a 20 percent evaluation under Diagnostic Code 7120. The Board notes that the Veteran has not manifested any disruption to arterial flow to the testicles. There is also no evidence of external symptoms affecting the testicles such as swelling, atrophy, signs of infection, or erythema. Therefore a rating in excess of 20 percent under Diagnostic Code 7120 is not warranted at anytime during the claims period. The Board has considered whether the criteria pertaining to disabilities of the skin and scars would result in a higher rating for the Veteran's disability. See 38 C.F.R. § 4.118 (2002). However, as the Veteran is already in receipt of a rating in excess of the maximum provided by Diagnostic Codes 7803 and 7804 (pertaining to superficial painful and unstable scars), an increased rating under these diagnostic codes is not possible. Additionally, the Veteran's left testicle clearly does not encompass an area larger than 12 square inches (77 sq. cm.) as contemplated by Diagnostic Code 7801. While the Veteran has complained of pain that interferes with his ability to walk, run, and play sports, rating the Veteran under Diagnostic Code 7805 based on limitation of motion of the affected part would also not result in a higher rating. None of the Veteran's physicians have identified actual loss of motion due to residuals of the left varicocele, and the grant of a 20 percent evaluation above was based in part on the Veteran's complaints of functional loss. Therefore, an increased rating is not warranted under the criteria for evaluating disabilities of the skin. Additionally, while the Veteran's January 2006 left laparoscopic varicocelectomy resulted in an abdominal scar, a separate rating is not warranted for symptoms associated with the scar. A separate rating is warranted for the surgical scar if the evidence establishes the presence of symptoms that are separate and distinct from those stemming from the service-connected residuals of a left varicocele. Cf. Esteban v. Brown, 6 Vet App 259 (1994). During a March 2006 VA urology examination, the Veteran's surgical scars were described as well-healed. The August 2010 VA examiner did not note the presence of any scars associated with the Veteran's surgery, and the Veteran has not reported any pain associated with his surgical scar. The Board therefore finds that a separate rating is not warranted for this aspect of the service-connected disability. 38 C.F.R. § 4.118, Diagnostic Codes 7802-7805 (2002). The Board has also considered whether an increased rating is warranted under 38 C.F.R. §§ 4.115a and 4.115b for disabilities pertaining to the genitourinary system, but finds that this area of the Rating Schedule is not for application. The medical evidence does not establish that the Veteran has manifested any kidney or voiding dysfunction, nor has he reported experiencing urinary tract infections. Accordingly, an increased initial rating of 20 percent, but not higher, is warranted for the residuals of a left varicocele with chronic testicular pain. There is no other schedular basis for granting a higher rating. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against a rating in excess of that assigned above. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's residuals of a left testicle varicocele are manifested by symptoms such as pain and tenderness of the testicle with prominent veins and functional limitations. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. The Court has also held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. In this case, the record is negative for evidence that the Veteran is unemployable due to the service-connected left testicle disability. He is not in receipt of Social Security disability benefits, and has continued to work throughout the claims period. The Veteran has also not stated that he is unable to perform his duties due to the left testicle condition. Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected disability. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). VA 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) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private treatment records. Additionally, the Veteran was provided proper VA examinations in August 2003 and August 2010 in response to his claim. The Board also finds that VA has complied with the August 2010 remand orders of the Board. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). In response to the Board's remand, the Veteran was provided a VA examination of his left testicle which documented the Veteran's complaints of functional and work impairment. The case was then readjudicated in May 2011. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER The Veteran's residuals of a left varicocele with chronic testicular pain warrant an initial rating of 20 percent, but not greater, and to this extent the claim is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs