Citation Nr: 1325480 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 04-30 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether the reduction of the disability evaluation of the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 60 percent to 10 percent effective as of July 1, 2007, was proper, to include the issue of whether the reduction of the evaluation of the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 10 percent to noncompensable effective as of March 1, 2010, was proper. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Daniel Smith, Attorney ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active service from January 1993 to July 1993. This appeal came before to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Nashville, Tennessee, Regional Office which, in pertinent part, denied a TDIU. In August 2006, the Nashville, Tennessee, Regional Office proposed to reduce the disability evaluation for the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 60 percent to 10 percent. The Veteran subsequently moved to Georgia. In April 2007, the Atlanta, Georgia, Regional Office effectuated the proposed reduction as of July 1, 2007. In May 2007, the Board denied a TDIU. In September 2007, the Veteran submitted a Motion for Reconsideration of the Board's May 2007 decision. In March 2008, the Board denied the Veteran's motion. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2009, the Court granted the Parties' Joint Motion for Remand; vacated the May 2007 Board decision; and remanded the Veteran's appeal to the Board. In October 2009, the Nashville, Tennessee, Regional Office proposed to reduce the evaluation for the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 10 percent to noncompensable. In December 2009, the Regional Office effectuated the proposed reduction as of March 1, 2010. In July 2010, the Board remanded the issue of a TDIU to the Regional Office for additional action. In July 2011, the Board again remanded the Veteran's appeal to the Regional Office for additional action. That action requested by the July 2011 Board Remand was accomplished and the case was returned to the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance' with the terms of its remand orders). The Veteran subsequently informed the Department of Veterans Affairs (VA) that he had moved to South Carolina. The Veteran's record was transferred to the Columbia, South Carolina, Regional Office (RO). In July 2013, the Veteran submitted a Motion to Advance on the Docket. In August 2013, the Board granted the Veteran's motion. The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. 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). FINDINGS OF FACT 1. The evidence of record at the time of the April 2007 reduction action did not establish material improvement of the Veteran's spermatocele with bilateral testalgia and recurrent hematuria. 2. The issue of whether the reduction of the evaluation of the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 10 percent to noncompensable effective as of March 1, 2010, was proper is now moot. 3. Service connection is currently in effect for spermatocele with bilateral testalgia and recurrent hematuria evaluated as 60 percent disabling. 4. The Veteran's service-connected spermatocele with bilateral testalgia and recurrent hematuria alone is of such severity as to preclude him from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The reduction of the evaluation for the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 60 percent to 10 percent as of July 1, 2007, was improper. 38 C.F.R. § 3.344(c) (2012). 2. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this decision, the Board determines that the reduction of the evaluation for the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 60 percent to 10 percent was not proper and grants a TDIU. Such action represents a complete grant of the benefits sought on appeal. Therefore, no further discussion of VA's duties to notify and to assist is necessary. II. Historical Review The report of a November 1993 VA examination for compensation purposes states that the Veteran was diagnosed with both bilateral testalgia of unknown etiology and recurrent hematuria of unknown etiology. In November 1993, VA established service connection for spermatocele with bilateral testalgia and recurrent hematuria; assigned a 10 percent evaluation for that disability; and effectuated the award as of July 20, 1993. In November 1997, VA increased the evaluation for the Veteran's genitourinary disorder from 10 to 20 percent and effectuated the award as of January 23, 1996. In August 2000, VA increased the evaluation for the Veteran's genitourinary disorder from 20 to 40 percent and effectuated the award as of December 14, 1999. In May 2003, VA denied a TDIU. In September 2003, VA increased the evaluation for the Veteran's genitourinary disorder from 40 to 60 percent and effectuated the award as of September 15, 2003. The report of a September 2003 VA examination states that the Veteran complained of a constant dull aching pain in the scrotum; occasional hematuria; and constant urine leakage which required the daily use of pads and a condom catheter. The Veteran was diagnosed with a "history of chronic testalgia with occasional hematuria." The report of a March 2006 VA neurological examination indicates that the Veteran complained of "some difficulties with urination." He reported no recent hematuria. The examiner noted that there was "no evidence on examination of any significant neurological dysfunction of any kind." In August 2006, VA proposed to reduce the evaluation for the Veteran's bilateral testalgia and recurrent hematuria from 60 percent to 10 percent. The Regional Office informed the Veteran that: Evaluation of spermatocele with bilateral testalgia and recurrent hematuria, etiology unknown, which is currently 60 percent disabling is proposed to be decreased to 10 percent. VA medical examination dated 03/22/06 shows you have some continual problems with urination but had no recent hematuria. Lavatory testing was normal and biochemistry tests were normal. Mtn Home medical records show you experience bladder incontinence but this evidence does not show that you meet the criteria for an evaluation higher than 10 percent. The cited medical evidence of record shows now your overall disability for this condition is best represented by a 10 percent evaluation because of daytime voiding intervals between 2 to 3 hours. The cited medical evidence of record shows no evidence for the requirement of absorbent material. In an undated written statement received in November 2006, the Veteran disagreed with the proposed reduction and conveyed that his testicular pain, hematuria, and urinary incontinence had actually increased in severity. In April 2007, the Atlanta, Georgia, Regional Office effectuated the proposed reduction as of July 1, 2007. The report of a September 2009 VA genitourinary examination relates that the Veteran complained of recurrent urinary incontinence for which he had used a condom catheter since 2002 or 2003; intermittent hematuria; and hematospermia. Impressions of "urinary incontinence by [history]" and hematuria were advanced." In October 2009, VA proposed to reduce the evaluation for the Veteran's bilateral testalgia and recurrent hematuria from 10 percent to noncompensable. The Regional Office informed the Veteran that: The current evidence does not demonstrate any industrial impairment or occupational inadaptability stemming from service-connected spermatocele with bilateral testalgia and recurrent hematuria. Accordingly, the current evaluation of 10 percent is no longer supported, and it is hereby proposed to be reduced to 0 percent. A 0 percent is warranted for the current severity of your service-connected disability. In December 2009, the Nashville, Tennessee, Regional Office effectuated the proposed reduction as of March 1, 2010. III. Propriety of Reductions The circumstances under which an evaluation may be reduced are specifically limited and carefully circumscribed by regulations promulgated by the Secretary of VA. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The provisions of 38 C.F.R. § 3.344 direct that: (a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind. (b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination __ months from this date, § 3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. (c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. The Court has further clarified that: Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993). The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal. In reviewing the procedural record, the Board observes that the RO failed to specifically identify any improvement of the Veteran's genitourinary disability. The clinical evidence does not show sustained material improvement of the Veteran's disability level. Indeed, the Regional Office appears to have specifically based the reduction upon its determination that the Veteran did not meet the criteria for the assignment of a 60 percent evaluation under the relevant diagnostic criteria. This is the defect identified by the Court in Brown. In the absence of specific and objective findings of material improvement of the Veteran's service-connected genitourinary disability, the Board concludes that the reduction of the schedular evaluation for the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 60 percent to 10 percent effective as of July 1, 2007, was improper. Given the Board's determination as to the initial reduction action, the issue of the propriety of the subsequent reduction of the evaluation of the Veteran's genitourinary disorder from 10 percent to noncompensable effective as of March 1, 2010, is now moot. IV. TDIU A TDIU may be assigned where the combined schedular rating for the Veteran's service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disability is sufficient to render the Veteran unemployable without regard to either his advancing age or the presence of any nonservice-connected disorders. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341. The provisions of 38 C.F.R. § 4.16(a) provide, in pertinent part, that: Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. Service connection is currently in effect solely for spermatocele with bilateral testalgia and recurrent hematuria evaluated as 60 percent disabling. A review of the record reveals that the Veteran completed two years of college. He has worked as a maintenance helper, truck driver, mail handler, laborer, production inspector, and bus operator. The Board observes that the Veteran meets the schedular criteria for a TDIU under the provisions of 38 C.F.R. § 4.16(a). Therefore, it is necessary to determine whether the Veteran is unemployable as a result of his service-connected genitourinary disability without regard to his nonservice-connected disabilities or previous unemployability status. The Veteran has been unemployed since May 2003. He reports being unable to take potential jobs that would be too strenuous or physically demanding for him. In support of his TDIU claim, the Veteran has submitted letters describing the physical requirements of potential jobs. A statement from the Veteran's last employer indicates that the Veteran was terminated due to attendance problems. A separation notice from another employer conveys that the Veteran was terminated for unsuccessful completion of the probationary period. The Board notes that the Veteran has advanced that he frequently reported late to work, missed work, or was terminated or forced to resign from work due to his service-connected genitourinary disability. The report of a December 2003 VA examination notes that the Veteran reported experiencing testicular pain and severe uncontrolled incontinence which caused him to continuously wear a condom catheter. The examiner opined that it would be difficult for the Veteran to retain employment given the severity of his subjective urinary incontinence. The Social Security Administration (SSA) determined that the Veteran was incapable of working based upon a finding that the Veteran's age, education, and work background would require a job that allowed him to take 5-10 minute breaks each hour and two 30 minute breaks per day and such employment did not exist. At a December 2012 VA examination, the examiner determined that the Veteran's urinary frequency and incontinence was "most limiting in terms of employment [as the] Veteran requires condom catheter currently and with frequency always needs to be near a restroom." The evidence of record establishes that the Veteran's service-connected genitourinary disability alone is of sufficient severity as to preclude substantially gainful employment consistent with his education and work experience. Therefore, the Board finds that a TDIU is now warranted. ORDER The reduction of the evaluation for the Veteran's spermatocele with bilateral testalgia and recurrent hematuria from 60 percent to 10 percent as of July 1, 2007, was improper. A TDIU is granted subject to the law and regulations governing the award of monetary benefits. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs