Citation Nr: 1308712 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 06-00 206A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased (compensable) rating for residuals of right orchiopexy with epididymitis. ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1979 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In his November 2005 substantive appeal, the Veteran requested a hearing before the Board. In February 2009, prior to the scheduling of that hearing, the Veteran withdrew his request in writing. The Board remanded the issue for further development in December 2009 and September 2012. The Veteran was afforded a VA examination and addendum opinion in accordance with those remands. The Board finds however that further development is necessary before a final decision on the merits may be made. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's residuals of right orchiopexy with epididymitis manifest with extreme pain of the testes. The Veteran has been treated with valium and other drug therapies. Additionally, the VA examiner in March 2012 noted that the Veteran's disability causes a functional impact. The examiner noted that the Veteran reported having episodes of severe testicular pain where he has difficulty moving and walking due to the pain. Further, the March 2012 VA examiner observed that the Veteran was seen on numerous occasions at the VA neurology clinic for treatment of his testicular pain, which the Veteran described as intense and indicated radiated to the lower abdomen and that he is unable to do any activity during these episodes. The Board notes that the schedular criteria regarding the testes do not address testicular pain. The rating criteria address only atrophy or removal of the testes, and epididymo-orchitis, which results in a voiding dysfunction and is rated as a urinary tract infection. 38 C.F.R. § 4.115b. The Veteran's symptoms do not include complete atrophy of the testes, removal of the testes, or symptoms of epididymo-orchitis. The VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The evidence on file requires that the Board remand the Veteran's residuals of right orchiopexy with epididymitis rating claim with respect to consideration of whether additional benefit may be provided by way of an extraschedular rating pursuant to 38 C.F.R. § 3.321. Given the Veteran's treatment for pain and the March 2012 VA examiner's opinion noting functional impairment, to include possible intermittent limitation of motion, the Board finds that the established schedular criteria are inadequate to describe the severity of the Veteran's service-connected residuals of right orchiopexy with epididymitis, which may present an unusual disability picture of marked interference with employment not accounted for in the Rating Schedule. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, a remand is necessary for the RO to consider the application of 38 C.F.R. § 3.321(b), permitting extraschedular evaluation, with regard to the service-connected residuals of right orchiopexy with epididymitis. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the impact of the impairment stemming from his residuals of right orchiopexy with epididymitis. He should be provided an appropriate amount of time to submit this lay evidence. 2. Refer the increased rating claim to the Director of Compensation and Pension Services for consideration of assignment of an extraschedular evaluation. 3. Then readjudicate the appeal, to specifically include on an extraschedular basis. If the benefits sought on appeal are not granted, issue the Veteran a supplemental statement of the case and provide him an opportunity to respond. The appeal should thereafter be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).