Citation Nr: 1320007 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-29 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a compensable initial rating for a headache disability. 2. Entitlement to service connection for a right testicular disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. FINDINGS OF FACT 1. The Veteran does not have a service-connectable right testicular disorder. 2. The headache disability results in at least monthly prostrating episodes but is not productive of severe economic inadaptability. CONCLUSION OF LAW 1. The criteria for service connection of a right testicular disorder have not been met. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for an initial rating of 30 percent, but no higher, for a headache disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. February 2006 private treatment records reflect the Veteran's six-month history of right testicular pain at night. Examination revealed a "little bit of transverse lie" and a movable right testicle. An ultrasound of the scrotum was unremarkable. The records include a finding that the testicle pain was associated with back pain. See February 2006 St. M.'s treatment records; R.C. treatment record. A March 2006 treatment record reflects the Veteran's history of testicular pain for one year. Examination revealed that the right testes was movable. The Veteran was diagnosed with "orchitis, epididymitis and epididymo-orchitis with abscess." See March 2006 St. M.'s treatment record. A July 2006 VA examination record reflects the Veteran's history of right testicular pain for 18 months. The Veteran reported that he was evaluated by an urologist but a definitive diagnosis was not given. Examination revealed an apparent variococele in the right scrotal sac. A scrotal ultrasound revealed no abnormality. The Veteran was assessed with orchialgia. The examiner noted that examination appeared to reveal a right variococele but ultrasound did not support the finding. The examiner found magnetic resonance imaging (MRI) "may be in order to definitively identify the abnormal palpation." March and April 2007 Tricare and private treatment records reflect the Veteran's history of lower lumbar pain and right testicular pain which began "years ago." The Veteran was diagnosed with lumbar spine disorders and testicular pain. The Veteran was scheduled for a sacroiliac joint injection. The physician reported that if the injection alleviated the testicular pain, then the testicular pain was a referred pain because the testicular work-up had been negative. The record indicates that the injection alleviated the testicular pain, and the physician determined that there was a "likely causal relationship between [the Veteran's] back and testicular pain given there was a response to the [SI joint] injection." An April 2007 statement from an internist reflects a finding that the Veteran's right testicle pain was "clearly related to back pain exacerbations and responds to treatment for back pain." See Dr. R. statement. An April 2008 Tricare treatment record reflects the Veteran's history of idiopathic chronic severe testicular pain with negative evidence of radiculopathy and prior urology evaluation without origin identified. The record notes that an ultrasound was negative April 2008 private treatment records reflect the Veteran's history of right testicle pain at night for several years. A sonogram revealed no abnormality in the right testis or right epididymis. See April 2008 St. M.'s treatment records. A May 2008 Tricare treatment record reflects the Veteran's history of chronic severe testicular pain of uncertain etiology. The record notes that there was no evidence by magnetic resonance imaging (MRI) of nerve compression as a cause of the pain. A November 2008 VA examination record reflects the Veteran's history of right scrotal discomfort. Scrotal ultrasonography revealed no abnormal finding involving the right testis or epididymis. Physical examination revealed no anatomical abnormality. A March 2010 Tricare treatment record reflects the Veteran's history of chronic pain in the right testicle. The record notes that extensive urologic testing revealed unremarkable findings and that medication for benign prostatic hypertrophy resulted in no improvement. The record indicates that the Veteran had been diagnosed with idiopathic hyperesthesia. Statements and records dated in June and July 2010 from a private urologist indicates that the physician had been treating the Veteran since February 2006, for right testicular pain. The physician ultimately determined the right testicular pain was caused by lumbar disc herniation and right spermatic nerve hypersensitivity. The preponderance of the evidence is against the claim for service connection for a disorder of the right testicle. The evidence dated during the appellate period does not include a diagnosis of a service-connectable disorder of the right testicle; there is no objective evidence of record showing that the Veteran currently has a disorder of the right testicle. See Mclain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim."). The Board acknowledges that the record reflects credible complaints of pain of the right testicle, dated during and since service and findings of pain, orchialgia (defined as pain in a testis), and hypersensitivity/hyperesthesia. See Wright v. Gober, 10 Vet. App. 343, 345 (1997) (citing Dorland's Illustrated Medical Dictionary 566 (28th ed. 1988)). Except in circumstances not applicable here, service connection will not be granted for pain or hypersensitivity alone; there must be a diagnosed or identifiable underlying malady or condition. See Sanchez-Benitez v. West, 13 Vet. App. 283, 285 (1999). In this case, the evidence suggests that the reported pain is referred from the lumbar spine disability; as such, the existence of testicular pain is not indicative of an underlying, service-connectable disability of the right testicle. The Board further acknowledges that the record includes a diagnosis of "orchitis, epididymitis and epididymo-orchitis with abscess" during service. The Board finds the competent evidence does not suggest that the in-service "orchitis, epididymitis and epididymo-orchitis with abscess" postdated the Veteran's separation from military service. Medical testing conducted after March 2006 reveals consistently normal findings, to include negative findings as to epididymitis, and the Veteran has not alleged the existence of any intermittent abnormality of the right testicle which is apparent to the senses which might account for the pain. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994). Furthermore, neither orchitis nor epididymitis are "chronic" as defined by 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is no competent evidence of a current disability, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. Accordingly, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Diagnostic Code (DC) 8100 provides a 10 percent rating for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is provided for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is provided for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Significantly, the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Neither the rating criteria nor the Court of Veterans Claims (Court) have defined "prostrating." By way of reference, according to Webster's New World Dictionary of American English, Third College Edition (p. 1080, 3rd College Ed. (1986)), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary (p. 1554, 31st Ed. (2007)), in which "prostration" is defined as "extreme exhaustion or powerlessness." The term "productive of severe economic inadaptability" is also not defined in VA law. However, the Court has held that it is not synonymous with unable to work and VA has conceded that the phrase "productive of" could be read to mean either "producing" or "capable of producing." See Pierce v. Principi, 18 Vet. App. 440, 446-7 (2004). Lay evidence is competent to describe the frequency, severity, and duration of migraine headaches, including whether they are severe enough to cause prostration. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 471. Therefore, the Board finds that the Veteran's statements about his headache symptoms constitute competent evidence for rating purposes. A July 2006 VA examination record reflects the Veteran's history of moderate headaches (estimated as 5/10-6/10) every three to five days, lasting about 12 hours. The Veteran also reported episodes with pain estimated as 10/10, dizziness, nausea, and blurred vision approximately four to five times a year. The Veteran explained that the severe headaches were alleviated by sleep and Motrin. The Veteran indicated that the headache condition mildly affected his daily work because he could not work at a computer for long periods of time without getting a headache. February and March 2007 treatment records reflect the Veteran's history of headaches several times each week, lasting for one to three days. The Veteran also reported a history of "debilitating" headaches approximately one to two times each month. An April 2007 Tricare treatment record reflects the Veteran's history that his migraine headaches were improving with medication use. An April 2007 statement from an internist indicates that the Veteran has at least two migraine headaches a month with associated headaches throughout the month. See Dr. R. statement. An August 2007 Tricare treatment record reflects the Veteran's history that he took Zomig "every other day" for migraines. The record notes that the Veteran was counseled of the potential disadvantages of daily abortive therapy and advantages of prophylactic therapy. The Veteran also reported that use of Triptan was "very effective for his severe headaches." The record notes that although the Veteran had a history of migraines, it was "likely" he had a significant component of analgesia rebound. A September 2007 Tricare treatment record reflects the Veteran's history of chronic daily headaches. April and May 2008 Tricare treatment records reflects the Veteran's history of "chronic migraine pain" and "severe chronic daily headache" with reported improvement due to medication. September and November 2009 and February 2010 Tricare treatment records reflect negative histories as to headache. The November 2009 treatment record also reflects the Veteran's history that his migraine medication was effective. A March 2010 Tricare treatment record reflects the Veteran's history of "frequent" headaches. He estimated that he had 15 migraines headaches each month which required use of medication. In October 2010, the Veteran submitted a headache log. He reported that he had headaches four to five times a week. He added that at least three to five times a month, the headaches persisted "way past 24 hours." The log reports episodes of migraine headaches (which are associated with pain estimated at least 8/10) one to three times a month and episodes of non-migraine headaches (which are associated with pain estimated at less than 8/10) multiple times a week. The log does not reflect any episodes of migraine headaches lasting longer than one day. After review of the evidence, the Board finds a 30 percent rating is warranted based on the evidence of at least monthly prostrating headaches. A rating greater than 30 percent is not warranted at any time. Initially, the Board notes that the Veteran has reported near-daily to daily headaches. However, based on the Veteran's descriptions, only the reported "migraine headaches" can be characterized as prostrating; the other headaches do not result in the severe helplessness or powerlessness necessary to be defined as "prostrating attacks." The probative evidence indicates that the Veteran has up to three migraine headaches each month which can last up to 12 hours and which require rest and medication. The Board acknowledges that the Veteran reported having 15 migraines a month in April 2010 and up to five migraines a month in October 2010. This history is inconsistent with the Veteran's headache diary, however. The maximum frequency reported in the headache diary is three migraines in a month, with at most two episodes a month between August 2009 and October 2010. The Board finds the headache log is more credible than the histories provided in April and October 2010 as it is contemporaneous with each headache. As such, the Board finds the April and October 2010 histories are not probative evidence as to the frequency of the prostrating headaches and the maximum episodes of prostrating headaches each month is three. Even assuming the prostrating headaches are best described as "very frequent, prolonged, and completely prostrating," the probative evidence does not suggest that the Veteran's headaches, either considering solely the prostrating headaches or all headaches generally, are productive of severe economic inadaptability. The Board acknowledges that the Veteran has reported occupational impairment due to his headaches. He has been able to maintain a full-time job, however, and he has never alleged that he has had to take leave from work or been unable to adequately perform his job due to his headaches. Furthermore, the medical records do not reveal the prescriptions of bedrest or provision of medical certificates for missed work or otherwise suggest absence from work due to the headaches. As such, the Board finds the prostrating headaches have not resulted in severe economic inadaptability. The Veteran's representative has argued that although the headaches have not actually resulted in severe economic inadaptability, they are "capable of producing" severe economic inadaptability and, as such, warrant a 50 percent rating. The Veteran and his representative have not pointed to anything in the record to support that conclusion, however, such as a history of missed work, lost wages, or missed promotion due the prostrating headaches. The Veteran makes no such contentions, nor does he even suggest that his condition requires any significant adjustment in his work schedule, such as working part-time or flexible hours. Rather, the Veteran has been employed full-time throughout the course of this appeal and is apparently able to complete his workload as evidence by the fact that he does not report being counseled or disciplined at work at any time during the appeal period. As noted above, each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. Although the record shows episodes of prostrating headaches at least once a month, the record indicates that the Veteran's headaches are not productive of severe economic inadaptability. Thus, the Board finds the headache disability only warrants a 30 percent schedular rating under DC 8100. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional impairment secondary to the headache disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The headache disability is manifested by impairment in functioning but the impairment is contemplated by the applicable rating criteria, and a higher rating is available for more severe symptomatology, to include more severe impairment of occupational functioning. Thus, the schedular rating criteria adequately contemplate the symptoms, and referral for an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this 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. For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary 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; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With respect to the claim of service connection for testicular pain, the duty to notify was satisfied by letters provided to the Veteran in February 2006 and December 2008, and the claim was readjudicated in a June 2009 statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). With respect to the claim of entitlement to a compensable initial rating, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. Nevertheless, the Board finds substantially compliant notice was sent in December 2008, and the claim was readjudicated in a June 2009 statement of the case. Mayfield, 444 F.3d at 1333. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent treatment records have been obtained and associated with the file. Examinations were obtained in July 2006 and November 2008 for the claim of service connection and July 2006 for the claim of entitlement to a greater initial rating. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate, as they were predicated on complete examination and discussion with the Veteran. All necessary findings are reported in the examination records. The Board acknowledges that it is unclear whether the examiners reviewed the claims file. Each examiner did obtain a medical history from the Veteran which was consistent with the record, however. Furthermore, with respect to the claim of service connection, because the matter hinges on the existence of a service-connected disability, rather than the existence of a nexus between a disorder and service, the Board finds no prejudice results from any failure to review the claims file. The Board further acknowledges that the examination for the claim of increased rating is almost seven years old and that the Veteran has reported a worsening of his headaches since the examination. The Board finds the matter is still ready for rating, however, because the record includes all the information necessary to rate the headache disability for the entire appellate period. As discussed above, the Veteran is competent to describe the frequency and severity of and impairment associated with his headache disability, and the Board finds the evidence provided by the Veteran, notably the headache diary, is an adequate substitute for a more contemporaneous VA examination. ORDER Service connection for right testicular pain is denied. An initial 30 percent rating, but no higher, for a headache disorder is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs