Citation Nr: 1303264	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  10-30 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to an initial compensable disability rating for the residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. A. Kennerly, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from October 2003 to February 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, granted the Veteran's claim of entitlement to service connection for the residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, and assigned a noncompensable disability rating.  The Veteran submitted his Notice of Disagreement with this determination in December 2009, and timely perfected his appeal in June 2010.

In June 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ), via video conference between the RO in Louisville, Kentucky and the Board's Central Office in Washington, DC.  A transcript of this proceeding has been prepared and incorporated into the evidence of record.

The Board notes that the Louisville, Kentucky, RO is the agency of original jurisdiction (AOJ).

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

Employability

Additionally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher evaluation includes a claim for a total rating based on individual unemployability (TDIU) where the Veteran claims that his service-connected disability prevents him from working.  The Board notes that the Veteran did not specifically indicate that he is currently unemployed or was completely unemployable as a result of his service-connected residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor.  In fact, the May 2009 VA examination report indicated that the Veteran was employed.  As such, the Board finds that Rice is not applicable to the current appeal.  There must be cogent evidence of unemployability in the record.  See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  Thus, any further discussion of an issue of entitlement to TDIU is not necessary.  See Rice, supra.

Referred Issue

The issue of entitlement to service connection for a scar, secondary to the service-connected residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, [see Board Video Conference Hearing Transcript, June 27, 2012, p. 8] has been raised by the record, but has not yet been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action.


FINDINGS OF FACT

1.  Residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, are manifested by frequency of urination involving daytime voiding intervals of no greater than one to two hours; there has been no recurrence of cancer since the completion of treatment measures to arrest the malignancy in 2008.

2.  The evidence does not show that the Veteran's residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, are so exceptional or unusual that referral for extraschedular consideration by designated authority is required.





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CONCLUSIONS OF LAW

1.  The criteria for a 20 percent disability rating for the residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, have been met since the initial grant of service connection.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115a, and § 4.115b, Diagnostic Codes 7524, 7528 (2012). 

2.  Application of the extraschedular rating provisions for the service-connected residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, is not warranted in this case.  38 C.F.R. § 3.321(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  VA's Duties to Notify and Assist

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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; and (3) that the claimant is expected to provide.

The instant claim arises from a granted claim of service connection.  The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a) (West 2002).  Compliance with the first Pelegrini II element requires notice of these five elements in initial ratings cases.  See Dunlop v. Nicholson, 21 Vet. App. 112 (2006).

Prior to initial adjudication of the Veteran's claim, a letter dated in March 2009 fully satisfied the duty to notify provisions, including notice of the degree of disability.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim.

The Board is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) [holding that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, 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].  However, relying on the informal guidance from the VA Office of the General Counsel and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that the Vazquez-Flores decision does not apply to the present case.  According to VA Office of General Counsel, because this matter concerns an appeal from an initial rating decision VA's notice obligations are fully satisfied once service connection has been granted.  Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely Notice of Disagreement with respect to the initial rating or effective date assigned following the grant of service connection.

The Veteran has not alleged that he received inadequate notice from VA.  See Goodwin v. Peake, 22 Vet. App. 128 (2008), [holding as to the notice requirements for downstream earlier effective date claims following the grant of service connection: "that where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"].

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his appellate claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  The Veteran has indicated that he receives all his medical treatment from VA.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).

The RO provided the Veteran an appropriate VA examination in May 2009.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  The May 2009 VA examination report is thorough and supported by VA outpatient treatment records.  The examination in this case is adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  

As noted above, the Veteran was also afforded a hearing before the undersigned VLJ during which he presented oral testimony in support of his initial rating claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issue on appeal during the hearing and asked all of the relevant questions associated with a higher disability rating.  Further, the VLJ requested the Veteran provide all relevant evidence associated with his claim.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II.  The Merits of the Claim

Relevant Law and Regulations

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012).

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.  See 38 C.F.R. § 4.7 (2012).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  See 38 C.F.R. § 4.21 (2012).  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision.  See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Because the Veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection until the present.  The Board will also consider probative evidence prior to this date, to the extent this evidence sheds additional light on the Veteran's overall disability picture.  This could result in "staged ratings" based upon the facts found during the period in question.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  That is to say, the Board must consider whether there have been times when his disability has been more severe than at others.  Id.

Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided.  The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether a claimant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions.

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 evaluation assigned; the additional code is shown after the hyphen.  See 38 C.F.R. § 4.27 (2012).

Specific Schedular Criteria

The RO assigned the Veteran a noncompensable disability rating for the residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, under 38 C.F.R. § 4.115b, Diagnostic Code 7528-7524.

According to the Rating Schedule, malignant neoplasms of the genitourinary system are rated as 100 percent disabling.  Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e).  If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals as voiding or renal dysfunction, whichever is predominant.  See 38 C.F.R. § 4.115(b), Diagnostic Code 7528 (2012).

Voiding dysfunction is to be rated based upon the particular condition involved such as urine leakage, frequency, or obstructed voiding, continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence.  When such residuals require the use of an appliance or the wearing of absorbent materials, the disability is rated based upon the frequency of need to change such appliances or pads.  When such changing is required less than 2 times a day, a 20 percent rating is warranted; when such changing is required 2 to 4 times a day, a 40 percent disability rating is in order; when such changing is required more than 4 times per day, a 60 percent rating is warranted.  See 38 C.F.R. § 4.115a (2012).



Where, as here, the Rating Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31 (2012).

When the predominant voiding dysfunction constitutes urinary frequency, a 10 percent rating is provided for daytime interval between two and three hours, or, awakening to void two times per night.  A 20 percent rating is provided for daytime voiding interval between one and two hours, or, awakening to void three to four times per night.  Finally, a 40 percent disability rating is warranted when the veteran's daytime voiding interval is less than one hour, or he must awake to void five or more times per night.  See 38 C.F.R. § 4.115a (2012).

The removal of one testis is noncompensable under the Rating Schedule, unless such removal leaves the veteran with no testes or a nonfunctioning testis.  See 38 C.F.R. § 4.115b, Diagnostic Code 7524 (2012).  The next higher evaluation of 30 percent is provided for the removal of both testes.  (Entitlement to special monthly compensation under § 3.350(a) is currently in effect.)

Analysis

The Veteran contends that his service-connected residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, are more disabling that contemplated by his currently assigned noncompensable disability rating.

Assignment of Diagnostic Code

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 diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 7714.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

Diagnostic Code 7528-7524 is deemed by the Board to be the most appropriate code, primarily because it pertains to the disability at issue (malignant neoplasms of the genitourinary system with testis removal) but also because it provides specific guidance as to how symptoms of this disability are to be evaluated.  The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used.  Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7528-7524.

Schedular Rating Consideration

As noted above, the Veteran is currently rated as noncompensably disabled for the residuals of his service-connected left orchiectomy, status post removal of a malignant mixed germ tumor, which became effective February 28, 2009, the day after he was discharged from active duty service.

Review of the record reveals that during active duty service, the Veteran was in good health until August 24, 2008, when he began to experienced left testicular pain and discomfort.  He sought treatment from his squadron flight surgeon on August 25, 2008.  After a thorough history and physical examination, there was enough concern for potential testicular torsion that an immediate ultrasound was ordered.  The Veteran was referred to the C.R.M.C. for the ultrasound.  The results of the ultrasound revealed a 2.4 by 2 by 2 centimeter heterogeneous mass in the left testicle with good blood flow, concerning for malignant neoplasm.  Blood work was drawn and a chest X-ray was obtained.  See Service Treatment Record, Medical Board Report, September 22, 2008.

On August 27, 2008, the Veteran underwent successful left radical orchiectomy for suspected neoplasm.  He had an uneventful post-operative course.  The pathology results (mixed germ cell tumor Stage IB) were reviewed with the Veteran and options for treatment, including watchful waiting with surveillance, chemotherapy, or retroperitoneal lymph node dissection, were discussed.  The final diagnosis was left testis orchiectomy (50 grams) - Malignant mixed germ cell tumor components: embryonal carcinoma comprising roughly 75 percent of the tumor, seminoma comprising roughly 20 percent of tumor, yolk sac tumor comprising roughly 5 percent of the tumor.  The tumor was 2.1 by 1.9 by 1.5 centimeters.  The extent of the tumor was limited to the testis and epididymis (confined by tunica albuginea).  Margins were uninvolved.  Angiolymphatic invasion was present in the testis.  Id.

On September 4, 2008, the Veteran had a computed tomography (CT) scan of the abdomen and pelvis.  The impression was (1) No definite evidence of recurrent, residual, or metastatic disease.  (2)  Soft tissue thickening and trace free fluid within the left groin/inguinal region.  This most likely represented recent post-operative change.  These changes did include a single 9 millimeter common femoral lymph node.  (3)  Multiple nonpathologic enlarged abdominal lymph nodes.  The largest single identifiable node was present within the right mid-abdomen.  While this node was not pathologically enlarged by CT criteria, it was noted for attention on follow-up imaging.  (4)  Mild bilateral gynecomastia.  (5)  Left upper quadrant nodule, as above, apparently contiguous with the greater curvature of the stomach.  This would likely represent a small gastric diverticulum; however, continued attention would be paid to this region on follow-up imaging.  Finally, the Medical Board Report noted that the Veteran's surgery was successful and he had not had any post-operative complications.  Overall, the Veteran's prognosis was considered good; however, the ultimate outcome would not be apparent for some time, as his case would require ongoing surveillance and monitoring.  Id.

Following his discharge from service, in association with his claim of entitlement to service connection for the residuals of his left orchiectomy, status post removal of a malignant mixed germ tumor, the Veteran was afforded a VA genitourinary examination in May 2009.  At that time, the Veteran stated that the course of his disability since onset had been stable.  He had blood work and X-rays performed every two months and a CT scan of the pelvis every three months.  There was no history of trauma to the genitourinary system or a history of neoplasm.  The Veteran denied experiencing anorexia, nausea, vomiting, fever, chills, fatigue, lethargy, weakness, flank or back pain, and lower abdominal or pelvic pain.  He denied experiencing urinary urgency, hesitancy/difficulty starting stream, weak or intermittent stream, dysuria, dribbling, straining to urinate, hematuria, urine retention and urethral discharge.  The Veteran did, however, state that his daytime voiding interval frequency was one to two hours.  There was no voiding at night.  The Veteran also stated that his urinary frequency depended on how much fluid he consumed.  There was no evidence of urinary leakage, recurrent urinary tract infections, obstructed voiding, urinary tract stones, renal dysfunction/failure, acute nephritis, hydronephrosis, cardiovascular symptoms, erectile dysfunction or abnormal ejaculation.  See VA Genitourinary Examination Report, May 1, 2009.

Upon physical examination, the Veteran denied experiencing abdominal or flank tenderness.  His bladder, urethra, anus and rectal wall exams were normal.  There was normal peroneal sensation and no peripheral edema.  Left testicle examination revealed that it was 1/3 of a normal sized testicle.  Right testicle examination was normal.  The Veteran's prostate and epididymis/spermatic cord/scrotum examinations were normal.  There were also normal seminal vesicles and normal cremasteric reflex.  The diagnosis was left testicle orchiectomy status post malignant mixed germ tumor.  Id.

The noncompensable evaluation assigned for service-connected disability contemplates the removal of one testis in accordance with the rating criteria under 38 C.F.R. § 4.115b, Diagnostic Code 7524.  The rating criteria for the next higher evaluation of 30 percent are not met in view of the Veteran's normal right testicle.  See 38 C.F.R. § 4.115b, Diagnostic Code 7524 (2012).

The Board recognizes that diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these.  In this case, the evidence shows that the Veteran's primary complaints of service-connected residuals of a left radical orchiectomy are essentially related to voiding dysfunction manifested by frequency of urination involving daytime voiding interval between one and two hours.  These complaints were documented in the May 2009 VA genitourinary examination as well as by the Veteran himself during his June 2012 Board video conference hearing.  See VA Genitourinary Examination Report, May 1, 2009; see also Board Hearing Transcript, June 27, 2012, p. 8.

In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit stressed that a lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional).  In this case, the Veteran's lay evidence regarding urinary frequency is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity.  See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005).

The evidence of record does not, however, demonstrate that the Veteran experiences daytime voiding intervals of less than one hour, or that he awakens to void five or more times per night.  See 38 C.F.R. § 4.115b (2012).  He has not endorsed any symptomatology associated with voiding or renal dysfunction.  As such, the Board finds that the evidence of record demonstrates symptoms and manifestations of service-connected genitourinary disability that more nearly approximate the criteria for a 20 percent evaluation but no greater, under 38 C.F.R. § 4.115a for urinary frequency from the time of the initial grant of service-connection.

While the Board is aware of the Veteran's complaints that his penis is no longer straight when erect, the May 2009 VA examiner did not deem this a penile deformity, nor did the Veteran endorse erectile dysfunction.  Regardless however, a penile deformity with corresponding erectile dysfunction warrants a maximum disability rating of 20 percent, to which the Board has already determined the Veteran is entitled.  See 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2012).  No higher disability rating is available in association with these complaints.  Thus, the Board finds that the Veteran is adequetly compensated under the 20 percent disability rating assigned in this decision.

The evidence in this case is approximately balanced.  Therefore, the benefit-of-the-doubt will be conferred in the Veteran's favor and a 20 percent disability rating for the residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, is granted, subject to the controlling laws and regulations, which govern awards of VA compensation.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990).

Extraschedular Rating Consideration

Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012), Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.


Neither the Veteran nor his representative expressly raised the matter of entitlement to an extraschedular rating.  The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned disability rating.  See Brannon v. West, 12 Vet. App. 32 (1998) [while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant].  Moreover, the Veteran and his representative have not identified any factors, which may be considered to be exceptional or unusual with respect to the service-connected residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, and the Board has been similarly unsuccessful.

The record does not show that the Veteran has required frequent hospitalizations for his service-connected disability.  There is no unusual clinical picture presented, nor is there any other factor that takes the disability outside the usual rating criteria.
In short, the evidence does not support the proposition that the Veteran's genitourinary disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012).


ORDER

Entitlement to an initial 20 percent disability rating for the residuals of a left orchiectomy, status post removal of a malignant mixed germ tumor, is granted, subject to the applicable criteria governing the payment of monetary benefits.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs