Citation Nr: 1324120 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 02-10 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for epididymitis of the left testicle. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from December 1969 to December 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal, from a January 2002 decision by the RO which granted service connection for epididymitis of the left testicle, subsequently rated 10 percent disabling from September 14, 2001, the date of claim. 38 C.F.R. 38 C.F.R. § 3.400(b)(2). In February 2008, the Board denied the issue currently on appeal, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2011 Memorandum Decision, the Court vacated the February 2008 Board decision with respect to the claim for increase, and remanded the appeal to the Board for further action. The Board remanded the Veteran's claim in June 2012. As the Board has remanded the Veteran's claim, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2007. A transcript of those proceedings has been associated with the Veteran's claims file. A claim for a total disability rating based on individual unemployability (TDIU) was denied by the RO in a May 2013 rating decision. Generally, a claim for a TDIU is considered a component of a claim for an increased initial rating for a service-connected disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the issue may be bifurcated from the underlying increased initial rating claim in order to satisfy the distinct notice and development required for a TDIU claim. See Locklear v. Shinseki, 24 Vet. App. 311 (2011). Here, the May 2013 rating decision appropriately bifurcated and independently adjudicated the claim for a TDIU. Subsequently, the Veteran did not file a notice of disagreement (NOD) regarding the denial of a TDIU and has submitted no additional evidence regarding unemployability or continued to allege unemployability based on his service-connected disabilities subsequent to the May 2013 denial. Accordingly, the claim for a TDIU is not now in appellate status before the Board. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.300, 20.302, 20.1103 (2012). FINDING OF FACT There is no probative evidence of hospitalization treatment or continuous intensive treatment for the Veteran's chronic epididymitis, nor of complaints or diagnosis of renal dysfunction. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for epididymitis of the left testicle are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7 and 4.115b, Diagnostic Code (DC) 7525 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). However, whereas here, the underlying claim was for service connection, which was granted, and the appeal stems from the downstream issue of the disability rating assigned, no further notice under this law is required. The Veteran has been afforded hearings before a Veterans Law Judge (VLJ) and a RO Decision Review Officer (DRO) in which he presented oral argument in support of his claim for an increased initial rating for epididymitis of the left testicle. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ sought to identify any pertinent evidence not currently associated with the claim. The VLJ did not specifically seek to identify whether the Veteran had symptoms meeting the schedular criteria for a higher rating, but this was not necessary, because the Veteran volunteered his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board and DRO hearings. By contrast, the hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ/DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, the claimant was provided the opportunity to present pertinent evidence. The record contains records of medical treatment received from VA and private treatment providers, and the Veteran was examined in connection with this disability, most recently in July 2012. The Board notes that the Veteran testified at the November 2007 Board hearing that he was receiving Social Security Administration (SSA) disability benefits for major depressive disorder. Board Hearing Tr. at 24-25. However, there is no indication that these records would be relevant to his epididymitis of the left testicle claim. Thus, VA has no further duty to assist him with regard to obtaining those records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) ("When a SSA decision pertains to a completely unrelated medical condition and the veteran makes no specific allegations that would give rise to a reasonable belief that the medical records may nonetheless pertain to the injury for which the veteran seeks benefits, relevance is not established.") In contacting the Veteran to ascertain if there were any private physicians and/or facilities where he received epididymitis treatment since January 2007, having the Veteran undergo an additional VA compensation examination in July 2012, and readjudicating the claim with consideration as to whether the Veteran's claim should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for their consideration of an extra-schedular evaluation under the provisions of 38 C.F.R. § 3.321, there was compliance with the June 2012 remand directive as there is now sufficient information and evidence to adjudicate the issue. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the United States Court of Appeals for Veterans Claims (Court) or Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is alternatively permissible to have "substantial" compliance with a remand directive, even if not "exact" or "total" compliance). The RO later issued a supplemental statement of the case in March 2013. Thus, the Board finds that the RO complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher one will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration of the appropriateness of "staged rating" also is required. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's chronic epididymitis is currently evaluated as 10 percent disabling under Code 7525 which contemplates chronic epididymo-orchitis. Diagnostic Code 7525 provides that this condition be rated according to the criteria for urinary tract infections. A 10 percent rating is warranted when the condition requires long-term drug therapy, one to two hospitalizations per year and/or intermittent intensive management. A rating of 30 percent is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. 38 C.F.R. § 4.155a, Diagnostic Code 7525 (2012). If there is poor renal function, then the condition should be rated as renal dysfunction. In the present case, the Veteran complains of constant pain in his testicles for which he takes pain medication daily. He also complains of intermittent swelling of the testicle. He states that this condition also makes it difficult to engage in sexual activities as it is painful. The Veteran underwent an initial VA examination in January 2002. At this examination, the Veteran stated he has continuing discomfort in the left testicle and swelling at the end of the day or after sitting for long periods. He reported, however, having been married and having had no difficulty with sexual intercourse. He also denied any problems passing urine, but did complain of urinary frequency during the daytime. He also reported mild urgency and occasional burning when he urinates. He denied any nocturia. Examination of the testicles did reveal he had tenderness in both testicles. They were bilaterally symmetrical and density was the same bilaterally. The diagnosis was "epididymitis of the left testicle with some swelling and discomfort after being on his feet all day or sitting all day. Left testicle is tender to palpation with recurrent epididymitis." The Veteran underwent a second VA examination in January 2005. At this examination, the Veteran complained of frequency in daytime urinating (10 times at intervals of 15 minutes) and nocturia times 2 at intervals of 3 hours. He reported problems starting urinating and with a weak flow. He also reported urinary incontinence with use of pads up to 20 times per day. He stated he had been impotent for 5 years, unable to achieve and maintain an erection, and experienced pain. However, he stated that the sexual dysfunction was caused by blood vessel disease and a psychological disorder. At the time of the examination, he was status post one week for vascular catheter ablation for a varicocele on the left testicle. Examination revealed the left testicle to be very tender with a varicocele present. There was also tenderness of the epididymis, which was swollen. There was also tenderness of the prostate, which was boggy and enlarged consistent with benign prostatic hypertrophy. The Veteran indicated he was being evaluated and treated for this at that time. Lab test results were within normal limits. The assessment was epididymitis of the left testicle, without change. The Veteran underwent another VA examination in January 2007. At this examination, the Veteran complained of lethargy and weakness. He reported nocturia of one time a night, but passing urine frequently during the daytime with hesitancy every hour. He denied incontinence at that time. He denied being hospitalized for this condition or having had catheterizations, dilatations, or drainage procedures. He denied any invasive procedures done on his testicle. He had sexual intercourse approximately every two months, and had discomfort with the left testicle at the time of intercourse. Physical examination revealed tenderness of the testicles; however, their size and consistency was essentially normal bilaterally. No atrophy was noted. The prostate was normal in size and nontender. The assessment was epididymitis of the left testicle, post operation for left hydrocele in 2004 (should be 2005). The examiner stated that, from a functional standpoint, the Veteran had frequency of urination every hour which would affect him both at work and at home. He had tenderness in the left testicle which decreased his libido. The Veteran underwent another VA examination in July 2012. He reported bilateral testicular pain, left worse than right, for which he took medication. He denied an orchiectomy. He reported voiding dysfunction which caused urine leakage that required absorbent material which must be changed less than 2 times per day. He stated that the voiding dysfunction did not require the use of an appliance. He reported that the voiding dysfunction caused increased urinary frequency with daytime voiding interval at less than one hour and nighttime awakening to void three to four times. He stated that the voiding dysfunction caused signs or symptoms of obstructed voiding. He reported that hesitancy was marked. He reported markedly slow or weak stream. He stated that there was markedly decreased force of stream. He denied a history of recurrent symptomatic urinary tract or kidney infections. He denied erectile dysfunction. He denied retrograde ejaculation. He reported a history of chronic epididymitis, epididymo-orchitis or prostatitis which required use of long-term drug therapy. Upon physical examination, the penis was normal. The left testicle was one-half to one-third normal size. Epididymis was abnormal and it was noted that the left epididymis was unable to be evaluated due to pain. The prostate was abnormal. The Veteran had an enlarged prostate that was consistent with benign prostatic hyperplasia (BPH). The examiner diagnosed chronic epididymitis and prostate hypertrophy. The Veteran did not have a benign or malignant neoplasm or metastases related to these diagnoses. The examiner noted that these conditions impacted the Veteran's ability to work, as the Veteran had increased testicle pain with activities and had to be careful with lifting, sitting and activities that cause straining. The examiner stated that the medical evidence showed that the Veteran was diagnosed with BPH with irritative voiding symptoms in April 2008. The examiner noted that the Veteran's urinary symptoms are directly related to his diagnosis of BPH and are consistent with such a diagnosis. Based on the fact that the Veteran was diagnosed in 2008 with BPH, he was on multiple medications for symptoms related to BPH, there was no medical evidence in the service treatment records of urinary complaints in service, and there is no pathophysiological relation between epididymitis, varicocelectomy, varicocele embolization, hernia repair causing any urinary symptoms, the examiner opined that it is less likely than not that the Veteran's BPH with urinary symptoms were related to his service connected epididymitis. VA treatment records dated in March 2012 reflect that the Veteran denied urinary incontinence. VA treatment records dated in November 2012 reflect that the Veteran reported occasional bladder incontinence. The record also contains VA treatment records that show the Veteran was seen in the Urology Clinic approximately one to two times a year for follow-up of his chronic epididymitis. In May 2003, the Veteran complained of urgency, frequency, and feeling of incomplete emptying. He denied hematuria, urinary tract infections, stones, renal problems, voiding problems (difficulty urinating, incontinence, slow stream, significant nocturia, dysuria, or other urinary symptoms). He denied penile, scrotal, testes or cord lesions. He denied prostate problems and had normal erectile function and normal fertility, except as already noted. There was normal phallus with a normally placed and normal caliber urethral meatus; corpora and urethra were palpably normal with no plaques identified; perineum was normal in appearance; scrotum revealed tenderness to left epididymal area (Veteran could not tolerate direct palpation secondary to pain/discomfort). There were no masses or cutaneous lesions; cords were palpably normal without hydrocoel, speratocoel or testes masses. In July 2003, the Veteran underwent a scrotal sonogram that showed a varicocele and testicular cyst on the Veteran's left testicle. A follow up scrotal sonogram conducted in January 2004 revealed the same findings. In January 2005, the Veteran underwent a transcatheter embolization for the left varicocele. Current medical records do not show a recurrence of this condition. Rather the VA treatment records continue to record the Veteran's main complaints of pain in the testicles with problems with urinary frequency and sexual intercourse. Considering the evidence of record, the Board finds that the preponderance of the evidence of the evidence is against the Veteran's claim for a disability rating higher than 10 percent. The evidence does not show that this condition has required frequent drainage or hospitalization (greater than two times per year). Nor does it show that the Veteran's condition requires continuous intensive management. Rather the evidence shows the Veteran has only been seen in the Urology Clinic one to two time per year for follow up. Although he underwent the transcatheter embolization in January 2005 for the left varicocele, there is no credible indication that this condition has continued or worsened requiring more than annual follow up visits, or even that it is related to the service connected disability. In addition, there is no evidence that the Veteran's epididymitis has resulted in poor renal function. Thus evaluation on the basis of renal dysfunction is not warranted. Additionally, the Board notes that the Veteran's complaints include pain and swelling of the testicles, and urinary frequency. In a March 2013 rating decision, service connection for a separate testis disability was granted. The Board finds that the Veteran's testicular pain and swelling symptoms would be contemplated in the now service-connected testis disability. Thus, the Veteran would not be entitled to a separate and additional rating for symptoms of testicular pain and swelling as symptoms of epididymitis, since 38 C.F.R. § 4.14 provides that rating such manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided. See VAOGCPREC 23-97; see also Esteban v. Brown, 6 Vet. App. 259 (1994) (a separate rating may be granted for a "distinct and separate" disability that is, "when none of the symptomatology . . . is duplicative . . . or overlapping"). That is, a claimant may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Moreover, the July 2012 VA examiner opined that it is less likely than not that the Veteran's urinary symptoms are related to his service connected epididymitis. Thus, the Veteran would not be entitled to a separate and additional rating for urinary symptoms. Extraschedular Consideration 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 38 C.F.R. § 3.321(b)(1), 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 the claimant's 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). If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, 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 and frequent periods of hospitalization. Id. at 116. If this is the case, 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 for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the Veteran's symptoms of epididymitis, are essentially contemplated by the rating schedule, with his other genitor-urinary symptoms attributable to either his non-service connected benign prostatic hypertrophy, or his now service connected testis disorder. Moreover, the Veteran's disability picture does not include other related factors such as marked interference with employment and frequent periods of hospitalization. Although the Veteran has asserted that the disorder makes him unable to hold gainful employment, and the July 2012 examiner noted that the epididymitis impacted the Veteran's ability to work, the Veteran was clearly referring to all of his genitor-urinary symptoms (not only his epididymitis), and any schedular disability rating contemplates loss of working time. Marked interference with employment is not shown. Thus, extraschedular compensation is not for consideration. ORDER Entitlement to an initial disability rating in excess of 10 percent for epididymitis of the left testicle is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs