Citation Nr: 1322427 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-43 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES Entitlement to an increased rating for right intermittent testalgia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 1974 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. The issues of entitlement to service connection for an acquired psychiatric disability as secondary to service-connected right intermittent testalgia, and entitlement to special monthly compensation (SMC) based on the loss of use of a creative organ have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). (See August 2008 VA Form 21-4138 (notice of disagreement).) Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. During the rating period on appeal, the Veteran's right testalgia has been manifested by complaints of pain. 2. There has been no demonstration by competent medical evidence, or by competent and credible lay evidence of record, that Veteran's right testalgia has been manifested by gross hematuria, urinary tract infections, stones, renal problems, voiding problems (difficulty urinating, incontinence, slow stream, significant nocturia, dysuria, or other urinary symptoms), or penile, scrotal, testes or spermatic cord lesions. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right intermittent testalgia, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804, 38 C.F.R. § 4.115a, § 4.115b, Diagnostic Code 7525 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties 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 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in August 2007. VA also has a duty to assist the Veteran in the development of the claim. The claims file contains VA and private medical records, as well as the statements of the Veteran in support of his claim. The Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. In July 2013 correspondence, the Veteran stated that his treatment is from VA facilities, and all records had already been submitted to the RO. The Veteran was afforded a VA examination in August 2007. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination obtained in this case is adequate, as it provides findings relevant to the criteria for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). In addition, as noted above and below, the Veteran's testalgia pain is rated analogous to a painful scar. The Veteran is competent to report pain; thus, another VA examination which reflects his complaints of pain is not necessary. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When an unlisted condition 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. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Court has held that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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. The Veteran filed a claim for an increased rating in April 2007. As such, the rating period on appeal is from April 2006 provided that the evidence reflects a worsening of the disability during the one year time period prior to the filing of his claim for an increased rating. 38 C.F.R. § 3.400(o)(2) (2012). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). In accordance with 38 C.F.R. §§ 4.1 and 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of the disability is for consideration in rating a disability. The Veteran is service connected for right testalgia. Testalgia is defined as pain in the testicles. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). Testalgia does not have its own diagnostic code under 38 C.F.R.; therefore, it is rated under another diagnostic code based on the Veteran's symptoms. The Veteran contends that he has constant pain and cannot sit, walk, or stand for prolonged periods of time. In an August 2008 statement, he stated that his testalgia disability has "nothing to do with urinary tract infections, poor renal function or recurrent symptomatic infections." He reported that his right testis is swollen, painful, has caused him erection problems, and has caused the absence of ejaculation. The Veteran's painful testis is currently evaluated under DC 7804 by analogy to a painful scar. While the Veteran's claim was pending, new rating criteria for evaluating skin disabilities became effective on October 23, 2008; however, these regulations apply only to claims filed on or after October 23, 2008, or when requested by the Veteran. Although the Veteran did not specifically request review under the revised criteria, the Board has an obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes the Veteran's benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). The revised diagnostic criteria are potentially applicable for purposes of establishing an appropriate rating from October 23, 2008, onward. See Fenderson v. West, 12 Vet. App. 119 (1999). DC 7804, in effect prior to October 23, 2008, provided a 10 percent rating for superficial scars that are painful on examination. The current DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating would be warranted if the Veteran had three or four scars that are unstable or painful. Under the code in effect prior to October 23, 2008, a 20 percent would be warranted for deep scars or ones that cause limitation of motion if the area exceeded 12 square inches in size. Based on the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's right testalgia. The Board acknowledges the Veteran's statement that his current scar is not associated with his testalgia pain and that the scar was created by his personal physician on removing a growth which was not associated with his active duty injury. The Board has not rated the Veteran's disability based on a particular actual scar, and the Board acknowledges that the Veteran does not have a scar from his testalgia; however, he has been rated under the diagnostic code for scars because it considers pain of a nonskeletal body part, and mostly closely resembles the Veteran's disability. The Board has also consider whether there is another diagnostic code of the skin which would provide the Veteran a higher evaluation, but finds that there is not. The Veteran's testalgia symptoms are not analogous to a scar of the head, face, or neck with disfigurement (DC 7800), or a scar that is deep and nonlinear in an area of at least 12 inches (DC 7801). The Board has also considered other diagnostic codes. The evidence reflects that the Veteran was seen on approximately six different occasions in 2004 by a private examiner. (The handwritten dates are difficult to ascertain; however, the records were submitted in response to a request for March 2004 through May 2004 records.) A March 2004 private record reflects that an ultrasound was performed due to the Veteran's complaints of testicular pain. The impression was a "moderate volume right hydrocele."There was no evidence of testicular mass, contusion, abscess formation, or inflammatory process. Blood flow was identified. All six records reflect that the Veteran reported on each visit that he did not experience occasional erectile difficulties. His GU system was noted to be normal on each visit, with no positive notation as to dysuria, hematuria, nocturia, decreased force or flow, or penile discharge. A January 2007 VA urology record reflects that the Veteran was seen as a follow up for chronic right scrotal pain. It was noted that he had been provided a one month course of Ciprofloxacin for his complaint which was presumed to be epididymo-orchitis; however, the Veteran stopped taking the medication after four days due to itching, and never contacted medical providers about providing a different medication. It was noted that he still had chronic right scrotal pain and swelling and that he did not want surgery. Epididymo-orchitis is defined as inflammation of the epididymis and testis. The Veteran denied any recent hematuria, stones, UTIs, or voiding difficulties. A March 2007 VA clinical record of a sonogram for the Veteran reflects that his right testicle epididymitis and testicle are normal in echotexture and contour. He had a small hydrocele present on the right testicle. It was noted that the incidental findings on the scrotal sonogram were unrelated to chronic pain since service. It was further noted in a June 2004 addendum that the Veteran's testosterone was a "little low." A May 2007 VA clinical record reflects that the Veteran reported chronic testicular pain since service and that he had periodic swelling of the right testicle. A September 2007 VA report of an August 2007 examination is of record. It reflects that the Veteran reported that he has had intermittent pain since service and his testicle swells with exercise and with walking. He reported nocturia of two times a night and that he passes urine approximately four hours in the daytime. He did not have incontinence or recurrent urinary tract infections. He had no genitourinary tract malignancy. The Veteran reported that his service-connected testicle disability affects his daily life in that he had not had sexual intercourse in two years because he was concerned that touching of the right testicle, during intercourse, would increase his pain. Upon clinical examination, it was noted that the penis was not deformed. It was further noted that the size of the right testicle was increased due to hydrocele. The examiner opined that from a functional standpoint, the Veteran has "no problem at his work as a supervisor in the post office service. Although he does have trouble at home when he is doing any walking. He states that he has not had sexual intercourse for two years because of the pain in the right testicle." May and July 2008 VA clinical records reflect that the Veteran needed a cystoscopy. It was noted that he had declined a cystoscopy in the past. It was noted that the Veteran had no history of UTIs in the past and failed to report to his July 2008 appointment. An August 2008 record reflects that the Veteran failed to report for his cystoscopy scheduled for August 18, 2008, and that this was his second appointment in the past 12 months for which he had failed to report. A June 2008 VA clinical record reflects that the Veteran reported that he "maybe gets up once per night to urinate." VA clinical records in 2012 reflect that the Veteran reported constant pain in the right side of the scrotum. He reported that he needs "a lot of stimulation to get an erection" but is able to complete intercourse most of the time. He denied gross hematuria, urinary tract infections (UTIs), stones, renal problems, or voiding problems (difficulty urinating, incontinence, slow stream, significant nocturia, dysuria, or other urinary symptoms). He denied penile, scrotal, testes or spermatic cord lesions. He denied prostate problems and had normal erectile function and normal fertility except as noted above. (See July and September 2012 VA records.) VA records also reflect that the Veteran has been diagnosed with hypogonadism, hypotestosteronism, and glucose intolerance. DC 7525 provides that chronic epididymo-orchitis is to be rated as a urinary tract infection. The Veteran would be entitled to a rating in excess of 10 percent if the evidence reflected recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times a year) and/or requiring continuous intensive management. The evidence of record is against such a finding. There is no evidence that the Veteran has recurrent symptoms of an infection which require drainage or frequent hospitalizations, or continuous intensive management. 38 C.F.R.§§ 4.115a and 4.115b. As noted above, the Veteran denied urinary tract infections. The Veteran's accredited representative contends that the Veteran's right testalgia should be rated under DC 7523, which is the code for complete atrophy of a testis. The Board has considered the diagnostic codes for atrophy of the testis and removal of the testis (DC 7524), but neither situation is applicable the Veteran. The regulation provides a 30 percent evaluation when there is the removal of one service-connected testis and there is the absence or nonfunctioning of the other testis unrelated to service. A 20 percent evaluation is warranted where there is complete atrophy of both testes. In the Veteran's case, his atrophy of the left testis is unrelated to service; however, he does not have the removal of the right service-connected testis, nor is it atrophied. To the contrary, it has been swollen on occasion. In sum, the Veteran has pain of the right testis which is best rated as analogous to a painful scar, and does not warrant a rating in excess of 10 percent. The clinical evidence of record does not support rating the Veteran's testalgia under another more appropriate diagnostic code. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extra-schedular Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected testalgia is inadequate. As noted above, testalgia is defined as pain in the testis. The Board has also considered the Veteran's contention that his testalgia has caused difficulty walking, sitting, and standing, due to pain. The rating criteria for scars are applicable as they consider pain. The Board has considered the Veteran's contention that his testalgia is the cause of his marriage difficulties, erectile dysfunction, ejaculation difficulty, and employment difficulty. The evidence of record reflects that the Veteran was admitted as a VA hospital patient in 1986 for alcoholism, was divorced in 1999, reportedly was charged with manslaughter in 2004 due to the death of a passenger in his car, was diagnosed with depression and anxiety by a private provider in 2004, sought VA psychiatric treatment in 2008 for problems at work with anger and aggressive behavior, sought VA psychiatric treatment in 2009 during which he reported financial difficulties and continued use of alcohol, and has been diagnosed with hypogonadism and hypotestosteronism. The VA records reflect that the Veteran has reported that his "whole life is messed up due to his [testalgia]." (See 2009 VA mental health record.) The rating criteria for scars or urinary tract infections do not include factors of erectile dysfunction, ejaculation difficulty, depressed mood, anger, or other acquired psychiatric disability symptoms; however, in the introduction section of this decision, the Board referred, to the RO, the issue of entitlement to an acquired psychiatric disability, as secondary to service-connected right testalgia, and the issue of entitlement to special monthly compensation based on the loss of a creative organ. The Veteran's psychiatric symptoms, if any, would not be symptoms of his testalgia, but they could possibly be a separate diagnosed disability secondary to testalgia. Thus, referral for extra-schedular consideration is not warranted. (See Lindsay v. Shinseki, No. 11-1313, 2012 WL 512206, Vet. App. Feb. 17, 2012). In addition, with regard to the Veteran's contention that he has erectile dysfunction and ejaculation difficulties due to his testalgia, the evidence of record does not reflect that erectile dysfunction or ejaculation difficulty is due to his testalgia. Assuming arguendo, that either one, or both, is related to his testalgia, the evidence does not support a finding that his erectile dysfunction or ejaculation difficulty has caused marked interference with his employment at the post office or frequent periods of hospitalization; thus, referral for extra-schedular consideration is not warranted. Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The evidence of record reflects that the Veteran retired from the post office in March 2012. The Veteran has contended that he had issues with his employment; however, the evidence does not indicate that he was unable to maintain substantial gainful employment due to his testalgia; thus, the Board finds that the issue of entitlement to TDIU has not been reasonably raised by the record. ORDER Entitlement to an increased rating for right intermittent testalgia, currently evaluated as 10 percent disabling, is denied. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs