Citation Nr: 1216637 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 09-23 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected postoperative varicose veins of the left lower extremity. 2. Entitlement to a compensable disability rating for service-connected left varicocele, associated with postoperative varicose veins of the left lower extremity. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Buffalo, New York, which denied the above claims. Jurisdiction of this matter is currently with the RO located in New York, New York. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of a disability rating greater than 20 percent for service-connected postoperative varicose veins of the left lower extremity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the rating period on appeal, the Veteran's left varicocele has been manifested by pain and otherwise has been largely asymptomatic; the evidence of record fails to show complete atrophy of both testicles and impotence and urinary incontinence and frequency have been shown to be more likely due to a prostate condition. CONCLUSION OF LAW The criteria for a compensable disability rating for a left varicocele, associated with postoperative varicose veins of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.20, 4.115b, Diagnostic Codes 7599-7523 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court (Supreme Court) held that the blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By letters dated in January 2008, September 2008, November 2008, and June 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice in the letters with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2011). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2011); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2011). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2011). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). See also 38 C.F.R. § 4.14 (2011) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the disability rating assigned. The additional code is shown after a hyphen. Regulations provide that, when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2011). The Veteran's service-connected left varicocele is currently rated as noncompensable by analogy to atrophy of the testicles. Diagnostic Code 7523 provides a noncompensable disability rating for complete atrophy of one testicle, and a maximum 20 percent disability rating for complete atrophy of both testicles. See 38 C.F.R. § 4.115b, Diagnostic Code 7523. In the interest of clarity, the Board deems it necessary to address the procedural posture of the Veteran's left varicocele claim. A March 1983 rating action awarded service connection and assigned an initial noncompensable disability rating. The Veteran was informed of that decision and of his appellate rights in a letter dated April 12, 1983. He did not appeal the decision, and no new and material evidence was received such as to preclude the finality of that claim. Accordingly, the March 1983 decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.1103 (2011). Thereafter, a December 2001 rating action continued the noncompensable disability rating for the service-connected left varicocele. The Veteran was informed of that decision and of his appellate rights in a letter dated December 17, 2001. He did not appeal the decision, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. There was no additional correspondence submitted by the Veteran within one year following the December 2001 rating decision which could have been construed by the RO as a notice of disagreement or as submission of new and material evidence with which to reopen the denied claim. Thus, there is no indication of record that the December 2001 rating decision did not become final. See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Again, no new and material evidence was received in the relevant timeframe to keep that adjudicatory action alive. VA outpatient treatment records dated from January 2007 to July 2008 reflect the reports of frequent pain in the left testicle. In January 2008 it was noted that the Veteran was being treated with doxycycline for prostatitis by his primary care physician. A VA examination report dated in February 2008 shows complaints of pain in the left testicle most of the time. He noted recent episodes of what was thought to be prostatitis, treated with two courses of antibiotics. He was referred to a genitourinary specialist. He explained that he would drink a lot of water, and urinate at least every hour. He would be up between two and four times at night to void. He also had urinary hesitancy with a weak stream, in addition to some dysuria and some urgency. There was no incontinence, but he had some post-termination dripping. There was no history of surgery on the urinary tract or any bladder stones. A prior intravenous pyelogram (IVP) and renal study had shown a double collecting system in one kidney with some stones in the second collection system. He had no hospitalizations for urinary tract disease, and no malignancies. He was not required catheterization, dilation, drainage procedures, specific diet therapy, or medications. He was able to have an erection, but could not sustain it. The erectile difficulties were gradual in onset over the preceding three to four years. He was able to achieve penetration, but the erection would not last. He would occasionally have an orgasm, but would not necessarily be erect at the time. He was taking medication for depression. On physical examination, femoral pulses were very strong, bilaterally. The penis was uncircumcised and there was no deformity. The foreskin retracted easily. The testicles were both descended and normal in size. They were soft and smooth in consistency. The testicles were not tender. There was no atrophy. There was a slight tenderness lateral to the left testicle which probably represented the varicocele. The diagnosis was varicocele; and erectile difficulties, multifactorial in etiology including depression and medication (Wellbutrin). At a VA examination in July 2010, the Veteran reported that the course of his varicocele since its onset was stable. He described that it would ache continuously. He indicated that the varicocele caused his left testicle to be higher than his right, and that at times, it would disappear. He continued to have erectile dysfunction and had been having such symptoms long before he was taking medication for his depression. The varicocele reportedly interfered with his urine stream. Physical examination revealed a normal testicle examination, perineal sensation, epididymis, spermatic cord, scrotum, and seminal vesicles. There was a very slight varicocele in the left testicle. The diagnosis was left scrotal varicocele. The examiner remarked that the most likely etiology of erectile dysfunction was the Veteran's non-service-connected prostate enlargement. The examiner also concluded that the urinary symptoms were not due to either varicocele or medication for prostate enlargement (which was not service connected), as all symptoms could be attributed to prostate enlargement alone. The varicocele was said not to affect urination. In an addendum to the above examination report, also dated in July 2010, the VA examiner reiterated that the Veteran's urinary symptoms were not due to either the varicocele or the medication for prostate enlargement. All his symptoms were said to be attributed to prostate enlargement alone. Considering the pertinent evidence in light of the above-noted criteria, the Board finds that the preponderance of the evidence is against assignment of a compensable disability rating for the Veteran's left varicocele for the entire period under consideration. Based on the evidence of record, complete atrophy of one, or both, testicles is simply not shown at any time during the rating period on appeal; thus, an increased (compensable) disability rating is not warranted under the criteria for atrophy of the testes in Diagnostic Code 7523. The Veteran asserts that his service-connected varicocele should be rated based on urinary or erectile dysfunction. However, the medical evidence of record indicates that any urinary dysfunction , urinary incontinence, urinary frequency, or erectile dysfunction the Veteran may have is likely related to his non-service-connected prostate disorder, and not his mild left varicocele. The Board recognizes that the Veteran is competent to report observable symptomatology (see Layno v. Brown, 6 Vet. App. 465, 469-470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)); however, the question of causation here involves a more complex relationship that the Veteran is not competent to address. Therefore, the Board finds more competent the VA examiner's and other VA practitioners' opinions attributing the Veteran's erectile dysfunction, and urinary dysfunction, to his prostate disorder and not his mild left varicocele. Hence, a compensable disability rating for a left varicocele is not warranted. The Board has also considered the applicability of other diagnostic codes for rating this disability, but finds that no other diagnostic code provides a basis for a compensable disability rating. Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, as noted above, the Veteran's symptoms remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. Extra-schedular Consideration Finally, the Board finds that the Veteran's left varicocele does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's left varicocele is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher disability rating, but as has been thoroughly discussed above, the disability rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER A compensable disability rating for service-connected left varicocele, associated with postoperative varicose veins of the left lower extremity, is denied. REMAND Unfortunately, a remand is required as to the issue of a disability rating greater than 20 percent for service-connected postoperative varicose veins of the left lower extremity. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2011). The Veteran is service-connected for varicose veins of the left lower extremity, currently rated as 20 percent disabling. In various correspondence, he has asserted that his varicose veins have caused an incompetent venous system with marked venous reflux. In the July 2010 VA examination report, the examiner indicated that the incompetent venous system with marked venous reflux was more likely than not a result of his varicose veins and not his surgery [conducted at a VA medical center in 1978]. The examiner explained that as to the surgery performed, his varicose veins were ligated and stripped, and removed, therefore would not be the cause of his incompetent deep venous system with marked venous reflux today. The burden of circulation of the venous blood was shifted to other blood vessels. The condition he now has was said to be the natural course of his varicose vein condition with the added stressors of the pressures of obesity, walking, and activities that legs are dependent for period of time, age related changes to the vascular system, and musculature. The Board finds that the VA examiner's opinion is unclear as to whether an incompetent venous system with marked venous reflux is a secondary manifestation of the Veteran's service-connected varicose veins. In one sentence the examiner concludes that such was more likely than not a result of his varicose veins, and in the following sentence the examiner states that the varicose veins were ligated, stripped, and removed, therefore would not be the cause of the incompetent deep venous system with marked venous reflux. As such, the Board finds that an additional medical opinion by an appropriate physician must be obtained. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Moreover, if it is determined that the incompetent deep venous system with marked venous reflux is a manifestation of the Veteran's varicose veins, the medical evidence of record currently does not provide sufficient information with which to rate the Veteran's disability. An examination must provide sufficient information to rate the disability in accordance with the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). Therefore, another examination is required in this case so as to establish all manifestations of the Veteran's service-connected varicose veins. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (concluding that inadequate medical evaluation frustrates judicial review). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his varicose veins of the left lower extremity should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall obtain any relevant ongoing VA treatment records of the Veteran for varicose veins of the left lower extremity that are not yet of record, and associate those documents with the claims file. 2. The RO/AMC shall arrange for the Veteran to undergo an appropriate VA examination so as to ascertain the nature and severity of his service-connected varicose veins of the left lower extremity. The examination must be conducted by a VA physician that has not previously examined the Veteran. The entire claims file, to include a copy of this Remand, must be made available to the examiner in conjunction with conducting the examination of the Veteran. The examiner shall annotate the report to reflect review of the claims file was undertaken. A discussion of the Veteran's documented medical history and assertions must be included. All tests or studies deemed necessary by the examiner shall be accomplished, and all clinical findings reported in detail. The examiner is requested to report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. The examiner should indicate whether the Veteran has any of the following: * Persistent edema and stasis pigmentation or eczema with or without intermittent ulceration; * Persistent edema or subcutaneous induration, stasis pigmentation, or eczema, and persistent ulceration; or * Massive board-like edema with constant pain at rest. The examiner is also requested to provide an opinion as to whether any incompetent venous system with marked venous reflux found on examination is a manifestation of the service-connected varicose veins of the left lower extremity. If so, all signs and symptoms necessary for rating such manifestations under the appropriate rating criteria must be provided. It should also be noted whether such symptoms entirely overlap with those experienced as a result of the already service-connected varicose vein disability. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs