Citation Nr: 1322095 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-26 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for left testalgia. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from May 1987 to October 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida, that granted service connection for left testalgia and assigned an initial noncompensable rating for that disability, effective February 17, 2009. During the course of this appeal, the Veteran reasonably raised the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2012 the Board remanded the increased rating and TDIU issues for additional development. The TDIU issue was adjudicated by the agency of original jurisdiction in a November 2012 Supplemental Statement of the Case. . Reference is made to statements submitted by the Veteran in December 2012 wherein he requested hearings before the Board both in Washington, DC, and at the local regional office. However, in a statement dated in May 2013, the Veteran, through his representative, withdrew all hearing requests. The following decision is based on review of the Veteran's claims file in addition to his Virtual VA (VVA) file or "eFolder." Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Since the initial grant of service connection effective February 17, 2009, the Veteran's left testalgia has been has been manifested by pain and swelling that has necessitated long-term drug therapy; however, erectile dysfunction, poor renal function, recurrent symptomatic infection requiring drainage, frequent hospitalization (greater than two times per year), and/or continuous intensive management has either not been demonstrated or not found to be related to his service connected testalgia. CONCLUSION OF LAW Since the initial grant of service connection effective February 17, 2009, the criteria for a 10 percent rating, but no higher, for left testalgia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.115a, 4.115b, Diagnostic Code 7525 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the initial rating claim, as the January 2010 rating decision granted service connection for left testalgia, that claim is now substantiated. VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a Statement of the Case (SOC) if the disagreement concerning the downstream issue is not resolved. And because the RO issued the appropriate SOC in November 2012 addressing the downstream increased rating claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records, to include service treatment records and pertinent, available post-service treatment records, has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. The Veteran has been afforded the appropriate VA examination. The January 2009, October 2009, August 2011 and December 2011 examinations were adequate as the examiners reviewed the relevant medical history, considered the Veteran's lay complaints/history, and provided opinions with supporting rationale and citation to the evidence. Recognition is given to the fact that the reports of the Veteran's VA examinations are now, at a minimum, in excess of 18 months old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left testalgia since he was last examined. The Veteran does not contend otherwise. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. II. Increased Rating Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection, and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When an unlisted condition such as left testalgia is encountered, it will be 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. See 38 C.F.R. § 4.20. The Veteran's service-connected left testalgia is evaluated by analogy to Diagnostic Code 7525. Under Diagnostic Code 7525, chronic epididymo-orchitis is rated as a urinary tract infection. 38 C.F.R. § 4.115b, Diagnostic Code 7525. 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 evaluation. 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. "Drug" is defined, in part, as any chemical compound used on or administered to humans for the relief of pain or suffering. This includes non-steroidal anti-inflammatory or NSAIDs. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 575 (31st ed. 2007). Diagnostic Code 7525 also provides that tubercular infections are rated in accordance with §§ 4.88b or 4.89, whichever is appropriate. See 38 C.F.R. § 4.88b (which rates impairment resulting from infectious diseases, immune disorders, and nutritional deficiencies). However, the evidence in the present case does not reflect that the Veteran suffers from tubercular infections. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. By way of history, the Veteran's STRs reflect complaints of left testicular pain. The assessment was epididymitis and left ochalgia. Following service, a January 2009 VA examination report (in pertinent part) notes the Veteran's complaints of pain (from a dull aching to a sharp pain) in his left testicle that was aggravated by sitting and standing. The Veteran reported taking Naproxen for various complaints of pain. Upon examination, the left testicle was tender. The diagnoses included chronic left epididymitis. The Veteran's wife submitted a statement in February 2009. She reported that during the six years that she had known the Veteran, he had constantly complained of pain and swelling in his left scrotum. An October 2009 VA genitourinary examination report notes the Veteran's complaints of left testicular pain since service that had progressively gotten worse. His current treatment consisted of pain medication (Naprosyn and Motrin), which was not effective. The Veteran also complained of erectile dysfunction and urinary symptoms, including urgency, hesitancy, dysuria and stress incontinence. He denied urethral discharge, renal dysfunction, renal failure, or urinary tract infections. On examination the left testicle and left epididymitis were tender. The prostate was enlarged. The diagnoses included: active left testalgia with the only residual being pain and tenderness; and active benign prostatic hypertrophy, with residual urinary symptoms, not related to testalgia. In a November 2010 statement the Veteran reported that he had constant pain and swelling in his left scrotum. An August 2011 VA genitourinary examination report notes the Veteran's complaints of constant left testicular pain. His current treatment consisted of pain medication (Naproxen, Tramadol, Tylenol, and ASA (aspirin)), as well as hot and cold packs, which were not totally effective. He also reported worsening UUI (urge urinary incontinence) and ED (erectile dysfunction). He denied urinary tract infections. On examination the left testicle and left epididymitis were tender. The prostate was enlarged. No objective evidence of epididymitis was noted. The diagnoses included: left varicocele versus spermacocele with no other residuals; and benign prostatic hypertrophy, with irritative voiding symptoms. Regarding erectile dysfunction, the examiner noted that ejaculation was normal and vaginal penetration was not possible. Erectile dysfunction was likely a psychological condition. The examiner also stated that medical literature and review of the Veteran's medical records does not support a causal relationship between testalgia and erectile dysfunction, or testalgia and benign prostatic hypertrophy with voiding symptoms. A December 2011 VA examination report notes the Veteran's complaints of pain. The Veteran reported that he was unemployed because he had been unable to find a job. Examination revealed a chronically enlarged, fibrotic and tender left epididymitis and an atrophied, tender left testicle. There was no erectile dysfunction or history of urinary tract infections. The diagnosis was left ischemic orchitis/atrophy associated with left testalgia/ epididymitis. The examiner opined that the Veteran's incontinence was due to his benign prostatic hypertrophy and were not related to his military service. The examiner also opined that the Veteran's testalgia had no significant occupational effects. A November 2012 private medical opinion from Dr. JWB includes a statement from the Veteran's wife as to the severity of her husband's left testalgia. She reported that he had severe pain and swelling in his left testicle, which prevented him from moving around and having sex. She indicated that the Veteran was taking pain medication. She also described his urinary problems. The medical evidence in this case reflects that the Veteran's left testicular pain has been variously diagnosed as epididymitis, testalgia, varicocele versus spermacocele, and ischemic orchitis/atrophy associated with testalgia/ epididymitis. There is also evidence other disorders of the genitourinary system including, but not limited to, prostate dysfunction, erectile dysfunction, and urinary symptoms such as dysuria, stress incontinence, and urgency. It is well-established under VA law that, when the effects of a service-connected disability have not been clinically disassociated from those of a non-service-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, as discussed above, the VA examinations show that the Veteran's urological symptoms are not associated with his service-connected disability, but rather a prostate disability that is also unrelated to service or the service connected left testalgia. There is no medical evidence to the contrary. Similar negative findings have been made with regard to any erectile dysfunction experienced by the Veteran. There is also a lack of evidence of poor renal function or recurrent symptomatic infections. The Veteran's primary symptoms of his service-connected testalgia are pain and tenderness. The Board finds persuasive that the Veteran has consistently treated his chronic left testicular pain with various medications. The Board notes that testicular pain is susceptible to lay observation and thus the Veteran's report of pain supports the occurrence of symptoms of disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's description of his symptoms is deemed to be competent evidence. However, the Veteran's reported symptoms must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. The Board thus finds that since the initial grant of service connection effective February 17, 2009, the Veteran's left testalgia approximates a 10 percent rating for long-term drug therapy and/or intermittent intensive management. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7525. The term "drug therapy" is not defined under the rating schedule. However, in a liberal interpretation, both the medications taken by the Veteran during the period of the appeal (as noted above) meet the definition of "drug" as defined in Dorland's Illustrated Medical Dictionary, above. Thus, the criteria for a 10 percent rating have been met. 38 C.F.R. §§ 4.20, 4.115a, 4.115b, Diagnostic Code 7525. The evidence does not otherwise reflect poor renal function or evidence of recurrent symptomatic infection requiring drainage, frequent hospitalization (greater than two times per year), and/or continuous intensive management. As such, the Board does not find the Veteran's left testalgia approximates a 30 percent rating for urinary tract infection under Diagnostic Code 7525. The Board acknowledges that the Veteran is competent to report symptoms of his left testicle disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected genitourinary system disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. Those examinations also outweigh any lay assertions that the Veteran's prostate, erectile, or urinary symptoms are related to his left testicle disorder. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). As for extra-schedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's left testalgia disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Code that has specifically contemplated the level of occupational and social impairment caused by service-connected left testalgia. The Veteran's symptoms such as pain requiring long term drug therapy are specifically enumerated under Diagnostic Code 7525. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Since the initial grant of service connection effective February 17, 2009, a 10 percent rating, but no higher, for left testalgia is granted, subject to the laws governing the payment of monetary benefits. REMAND Unfortunately, an additional remand is required with respect to the claim for TDIU benefits. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). As directed by the June 2012 Remand, the Veteran underwent a VA examination in August 2012 for the purpose of obtaining a medical opinion regarding whether his service-connected disabilities alone precluded him from obtaining or maintaining substantially gainful employment. The Board has reviewed the August 2012 examination report, and finds that it is incomplete in this regard. Regarding the Veteran's service connected left knee disability, the examiner stated that no opinion could be provided because of the Veteran's poor effort on examination. Regarding the Veteran's service-connected fibromyalgia, the examiner questioned the previous diagnosis of fibromyalgia (citing a "lack of documentation and conflicting exams") and thereby did not render an opinion on the TDIU issue. No opinion was provided regarding service-connected left inguinal hernia. Moreover, the examiner did not comment as to how the combination of the Veteran's service-connected disabilities impacted his employability. The Veteran's representative argues that the August 2012 VA examination is inadequate for adjudication purposes. The representative further points to a November 2012 opinion from Dr. JWB that finds the Veteran unemployable secondary to his service-connected fibromyalgia and plantar fasciitis. This opinion does not address the August 2012 VA examination or the VA vocational rehabilitation evidence of record. In this regard, according to the VA examinations of record, the Veteran last worked as a truck driver and custodian in 2008. The Veteran's wife stated in a November 2012 letter from Dr. JWB that the Veteran could not maintain employment because of his medical problems. However, a November 2012 statement from the Veteran's VA vocational rehabilitation counselor notes that the Veteran was pursuing an advance degree, seeking a teaching job and working in the years since 2008. The documentation regarding Veteran's educational experience and employment history is incomplete. The Veteran's VA vocational rehabilitation file should be obtained and associated with the claims file before a decision is made regarding his claim of entitlement to a TDIU. The Board notes that it may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a); Beaty, 6 Vet. App. at 538; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Given the lack of an adequate medical opinion in this case, the Board finds that another opinion is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also, Green v. Derwinski, 1 Vet. App. 121, 124 (1994) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any unassociated VA or private medical records that may exist or are otherwise identified by the Veteran, pursuant to 38 C.F.R. § 3.159, as well as the Veteran's VA vocational rehabilitation file. 2. Undertake appropriate development to obtain documentation regarding the Veteran's educational and occupational history. 3. Thereafter, the Veteran should be scheduled for the appropriate VA examination(s) to determine the effect of his service-connected disabilities on his employability. The claims file, Virtual VA file and vocational rehabilitation file should be made available to the examiner. All indicated testing should be accomplished. All findings and conclusions must be set forth in a legible report. The examiner must address the following: (a) Discuss all impairment/symptoms caused by each service-connected disability- (i) fibromyalgia; (ii) allergic rhinitis; (iii) left foot plantar fasciitis; (iv) right foot plantar fasciitis; (v) left knee disability; (vi) left inguinal hernia; and (vii) left testalgia. (b) Identify each function that is prohibited based on each associated service-connected impairment/symptom. For example, the ability to sit, stand, walk and the duration of each. (c) Thereafter, state the impact that the symptoms/impairment from each service-connected disability has on the Veteran's ability to work in either sedentary or manual type of positions. (d) Discuss how the combination of all of the Veteran's service-connected disabilities and associated symptoms impact the Veteran's ability to obtain and retain a substantially gainful occupation whether sedentary and/or manual. Rationale for all requested opinions must be provided. This rationale should include a discussion of the Veteran's educational and occupational history, as well as the type of functions he can or cannot perform due to service-connected disability. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). In providing the requested opinions, the examiner must consider and reconcile any conflicting evidence or opinions with regards to the above. 4. Thereafter, review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action is required. If further action is required, it shall be undertaken prior to further adjudication. 5. Readjudicate the claim for TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs