Citation Nr: 1304683 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-45 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable rating for left testis atrophy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from June 2005 to October 2009. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file in the "Virtual VA" system to ensure a total review of the evidence. Review of the Veteran's statements reveal he appears to be alleging negligence in the medical care he received in service which suggests a claim under 38 U.S.C.A. § 1151. However, the Veteran has already been granted service connection for the loss of his left testis, as well as special monthly compensation. Therefore the Veteran would not be entitled to any additional benefits under a successful § 1151 claim, so such an inferred claim will not be further discussed by the Board. FINDING OF FACT The evidence of record establishes that the Veteran has almost complete atrophy of his left testis, but no impairment of the right testis. CONCLUSION OF LAW The criteria for an initial compensable rating for testis atrophy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7523 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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 propriety of the initial evaluations 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). In October 2009 the Veteran filed a claim seeking service connection for a left testicle condition. Service connection was granted and a noncompensable rating was awarded under 38 C.F.R. § 4118, Diagnostic Code 7523. During the course of the appeal the Veteran was also granted special monthly compensation for loss of use of creative organ under 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350(a), which he not appealed. The Veteran contends he should be entitled to a compensable rating for the loss of his left testis due to negligent treatment received while in service. For reasons that will be discussed below, the Board finds the Veteran is not entitled to a compensable rating for his left testis atrophy. Diagnostic Code 7523 provides that a noncompensable rating will be assigned for complete atrophy of one testis, while a maximum 20 percent rating is assigned for complete atrophy of both testes. This is the key issue in this case. The code also notes the Veteran should be reviewed for entitlement to special monthly compensation under 38 C.F.R. § 3.350. Service treatment records were reviewed and establish that the Veteran experienced severe pain in his left testis in March 2007 during military service. The Veteran was originally treated for epididymitis, however was eventually diagnosed with torsion of the left testis. No abnormalities of the right testis were noted in service. In January 2010, the Veteran was provided a VA examination. The Veteran reported that he did not experience any urinary incontinence, impotence, or any over functional impairment due to his left testis condition. Following examination the examiner opined the Veteran had near complete atrophy of the left testis due to prolonged torsion. The Veteran was then provided a second VA examination for this condition in June 2010. The Veteran again reported no incontinence or impotence, but reported the condition caused him personal embarrassment and affected his level of self-esteem and desire to have sex. The Veteran also expressed concerns over his fertility level. Upon examination the examiner noted the left testis had atrophy, observing the testis was less than one centimeter and had a firm and sensitive consistency. The examiner noted the right testis was within normal limits, size of four centimeters, and firm consistency. The examiner diagnosed the Veteran with left testis atrophy and opined the condition did not have any effect on the Veteran's activities of daily living. Based on the foregoing the medical evidence of record establishes that the Veteran has atrophy of the left testis, but his right testis remains normal. Therefore the Veteran has not met the criteria for a compensable rating under Diagnostic Code 7523, which requires complete atrophy of both testes. As such, the Veteran has not established he is entitled to a compensable schedular rating for his left testis atrophy. In this regard, it is important for the Veteran to understand that the rating criteria is primarily used to address problems with industrial adaptability (work and limitations in work). As discussed above, the Veteran has established he is entitled to special monthly compensation under 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350(a). This special compensation was awarded by a rating decision in September 2010 with an effective date of October 2009, the day the Veteran separated from military service. As the criteria for a compensable schedular rating have not been met, the Veteran's claim is denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the medical evidence fails to show anything unique or unusual about the Veteran's left testis condition that would render the schedular criteria inadequate. The Veteran's main complaint is the loss of his left testis, which is specifically contemplated by the Diagnostic Code. Furthermore, the Veteran is also receiving additional special monthly compensation for the loss of his creative organ. The schedular rating and special monthly compensation therefore adequately describe the Veteran's disability picture, and referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is not currently employed, however, he has not alleged that he is unemployable on account of his service connected left testis atrophy. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected left testis atrophy. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for left testis atrophy was granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records were obtained, and the Veteran has not alleged he has received any treatment post-service. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for a compensable rating for his left testis atrophy is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs