Citation Nr: 1315890 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-07 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a disability rating in excess of 10 percent for chronic orchialgia, status-post varicocelectomy. ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from March 1994 to April 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, on behalf of the RO in Roanoke, Virginia, which continued a noncompensable rating for chronic orchialgia, status-post varicocelectomy. In May 2012, the Board remanded the claim for further development, to include affording the Veteran a VA examination to reassess his chronic orchialgia disability. In a March 2013 rating decision, the Appeals Management Center (AMC) increased the rating for chronic orchialgia, status-post varicocelectomy, from 0 to 10 percent effective September 16, 2004. Because the Veteran was not awarded a complete grant of the benefit sought, the increased rating claim is still on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A request for a total rating based upon individual unemployability (TDIU), whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the Veteran or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a service-connected disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In this case, the evidence shows that the Veteran has been employed as a payroll manager. See April 2005 VA examination report. There is no subsequent evidence to the contrary, and a June 2012 VA examination report indicates that the disability has no impact on his ability to work. Also, the Veteran himself has not raised the issue of a TDIU. Thus, the matter of a TDIU is not within the Board's jurisdiction. In April 2013 correspondence, the Veteran raised the issue of entitlement to an effective date earlier than September 16, 2004, for the award of the 10 percent rating for chronic orchialgia, status post varicocelectomy. This earlier effective date claim has not yet been accomplished by the Agency of Original Jurisdiction (AOJ) and is therefore REFERRED to the AOJ for appropriate action. FINDING OF FACT During the appeal period, the Veteran's chronic orchialgia, status-post varicocelectomy has been productive of scrotal pain requiring long-term drug therapy, but not drainage, frequent hospitalizations, or continuous intensive management. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for chronic orchialgia, status post varicocelectomy, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.115a, 4.115b, Diagnostic Code 7525 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. I. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With regard to the notice requirements pertaining to increased-rating claim, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, not also citation to alternative diagnostic codes or potential "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). An RO pre-adjudication letter was sent to the Veteran in April 2008 which apprised him of the type of evidence and information needed to substantiate his increased rating claim, and of his and VA's respective responsibilities in obtaining this supporting evidence. An additional VCAA notice letter was sent to him in May 2012. Thereafter, the claim was readjudicated by way of a March 2013 SSOC. The AOJ also advised him as to how disability ratings and effective dates are assigned. VA also has a duty to assist him in fulfilling developing the evidence concerning his claim. This duty includes assisting him in the procurement of records and, when necessary, providing an examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, as well as his post-service VA medical evaluation and treatment records. He also has had VA compensation examinations reassessing the severity of his chronic orchialgia. Neither the Veteran nor his representative has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of the claim being decided herein that has not been obtained. No further notice or assistance to him with his claims is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Claim for Higher Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and increase in the disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has reviewed all of the evidence of record, the more critical evidence consists of that generated during the appeal period, which, in actuality, extends from one year prior to the filing of this increased-rating claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). And the Court has held that, in determining the present level of disability over this time span, a "staged" rating is required if the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). This claim of entitlement to an increased rating for the service-connected chronic orchialgia was received on January 11, 2008, therefore the Board must assess the severity of this disability since the year prior, meaning since January 11, 2007. In Harper v. Brown, 10 Vet. App. 125, 126 (1997), the Court discussed the three possible effective dates that may be assigned for a higher rating depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1) ); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2) ); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2) ). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). The Board observes that the RO rated the Veteran's disability as 10 percent disabling since September 16, 2004, well before the date of receipt of this claim. However, as discussed above, the appeal period in this case begins on the date of receipt of the claim, January 11, 2008, and the Board is limited in this case to assessing the disability since the year prior to the date of receipt of the claim, meaning since January 11, 2007. As noted in the introduction, the Board recognizes that the Veteran has raised an effective date claim for the award of the increased rating and that claim has been referred for the appropriate development. The Veteran's chronic orchialgia disability has been evaluated under Diagnostic Codes 7599-7525, indicating that it has been rated by analogy to other genitourinary disabilities in the rating schedule. Pursuant to 38 C.F.R. § 4.27, when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27 (2012). Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Code to identify the basis for the evaluation assigned. Id. It is permissible to rate 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. Under Diagnostic Code 7525, evidence that a urinary tract infection requires long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management will result in the assignment of a 10 percent disability rating. 38 C.F.R. § 4.115a. The next higher rating of 30 percent requires evidence of either poor renal function or evidence of recurrent symptomatic infection requiring drainage, frequent hospitalization (greater than two times per year), and/or continuous intensive management. Id. A VA-sponsored "QTC" examination was conducted in May 2008. Examination of the testicles revealed mild, non-specific tenderness in both hemiscrotums. Examination of the penis was normal. Diagnosis was status-post varicocelectomy with chronic orchialgia. In an October 2008 notice of disagreement and a February 2009 VA Form 9, Appeal to the Board, the Veteran indicated that he was prescribed a prescription painkiller, Tramadol, to alleviate groin pain associated with his orchialgia disability. He reported that he continuously used Tramadol for six years for his groin discomfort, and he contended that the use of the drug constituted "long-term drug therapy" as contemplated by the 10 percent evaluation under the applicable rating criteria. His reiterated his contentions in his substantive appeal received in March 2009. Pursuant to the Board's 2012 remand, the Veteran underwent an additional VA examination in June 2012. There was no history of recurrent symptomatic urinary tract or kidney infections. The Veteran did not have erectile dysfunction, retrograde ejaculation, or a history of chronic epididymitis, epididmo-orchitis, or prostatitis. Examination of the Veteran's penis, testes, and epididymis was normal. Examination of the prostate was abnormal and described as "small, benign, no nodules or irregularity, with massage there is burning at the tip of the penis." The examination report indicates that the Veteran had a voiding dysfunction due to chronic prostatitis (a non service-connected condition). This dysfunction did not cause urine leakage or require the use of an appliance. It did cause increased urinary frequency - daytime voiding interval between 2 and 3 hours, and nighttime awakening to void 2 times. There were no signs or symptoms of obstructed voiding. The Veteran did not have a benign or malignant neoplasm or metastases related to the diagnosis noted. There were no related scars. On examination of the scrotum, there was no varicocele at rest or with valsalva. Scrotal contents were normal on examination. The Veteran's condition did not impact his ability to work. The examiner noted that although the Veteran described his pain as 10 out of 10, the examination did not show any significant localized scrotal pain. The examiner also indicated that what the history and examination showed was a finding of untreated chronic prostatitis which often refers pain to the scrotum. It was noted that the Veteran's varicocele treatments were successful. The examiner noted further that the Veteran's medication was prescribed for symptoms only and would be long-term until the underlying prostatitis resolved with treatment. The June 2012 VA opinion was however deemed inadequate to the extent that the examiner did not answer the questions posed by the Board in its remand. See November 2012 deferred rating decision. Consequently, an addendum was provided by the same examiner in November 2012. The examiner clarified that the Veteran was prescribed Tramadol for relief of his orchialgia (although not specific for such condition) and regardless of the source of the pain, it afforded relief. It was noted that the Veteran will need pain medication as long as he has pain and will use Tramadol as long as it provides him relief and his physician refills it for him. This examiner assessed the nature of the Veteran's current complaints as secondary to chronic prostatitis, which has not been recognized before or treated. The examiner stated that if prostatitis is treated and improves, the examiner speculated that the Veteran's pain would be less. According to a February 2013 VA primary care physician's note, the Veteran presented to the clinic for a follow-up on his current medical problem. He denied any new problems but stated that Tramadol caused insomnia when he taken at night. There was no dysuria or hematuria. The physician ordered an additional medication since the Veteran cannot take Tramadol at night. After a review of the November 2012 VA opinion, the AMC determined that some questions posed by the Board still remained unanswered. See December 2012 deferred rating decision. Consequently, in March 2013, the AMC requested an independent medical opinion for additional comment. Prior to forming an opinion, a physician indicated that he reviewed the claims file. He observed that Tramadol was prescribed for orchialgia by his primary care physician in September 2004 and that such medication constitutes long-term drug therapy. He also described the history of the Veteran's condition and described the noted management as intensive. He noted the examiner's assessment of untreated chronic prostatitis but stated that the Veteran's urinalyses over the years do not support such a diagnosis and also observed that a prostate specific antigen (PSA) test had not been performed. Finally, the physician stated that the Veteran's renal function is normal based upon creatinine of 0.9 and 1.1 mg/dl. The AMC's increase of the Veteran's disability rating to 10 percent was based on evidence of the Veteran's chronic orchialgia requiring long-term drug therapy, as confirmed by the March 2013 independent medical examiner. After a complete review of the record, the Board finds that a rating in excess of 10 percent for chronic orchialgia is not warranted. The evidence shows that the Veteran's orchialgia does not result in poor renal function or require drainage or frequent hospitalizations. The evidence also does not show that the Veteran's orchialgia has required continuous intensive management during the appeal period. Although the 2013 independent medical examiner described the management of the Veteran's condition as intensive, he made this characterization based on an outline of the Veteran's symptoms and treatment dating back to his active military service. Notably, the only management indicated during this appeal period is the Veteran's long-term drug therapy due to pain with Tramadol, and more recently with Lodine as needed. As indicated, this long-term drug therapy is contemplated in the currently assigned 10 percent rating. Additionally, the Board notes that Veteran has been treated on an outpatient basis approximately every 6 months, which demonstrates intermittent, rather than continuous, management of his condition. Accordingly, his disability picture more closely approximates that envisioned by the criteria for the currently assigned 10 percent rating under Diagnostic Code 7525. As the Veteran's condition does not require continuous intensive management, a higher rating under Diagnostic Code 7525 is not warranted. The Veteran is competent to report his observable genitourinary symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the nature and severity of his chronic orchialgia. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay statements must be considered along with the objective medical evidence and findings and in relation to the applicable rating criteria. Thus, although the Veteran's reports of symptoms have been considered, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of- the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). No staged ratings are warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his 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 extraschedular 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). Here, though, the schedular rating criteria contemplate the extent and severity of the Veteran's chronic orchialgia, status-post varicocelectomy, which is primarily productive of pain requiring long-term drug therapy, a manifestation that is contemplated in the applicable rating criteria. Referral to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) for extra-schedular consideration is not therefore appropriate. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to a disability rating in excess of 10 percent for chronic orchialgia, status-post varicocelectomy, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs