Citation Nr: 1327141 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-33 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a compensable rating for right epididymitis. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served in the Alabama Army National Guard from October 1981 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's electronic VA claims file. Following the hearing, the record was held open for a period of 30 days for the submission of private treatment records; however, the Veteran did not submit additional records. As an introductory matter, the Board notes that the Veteran's right epididymitis is rated as noncompensable (0 percent) under 38 C.F.R. § 4.115b, Diagnostic Code 7523. The rating schedule provides that when an award is granted under Diagnostic Code 7523, VA must review for entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350. It does not appear that the agency of original jurisdiction (AOJ) has yet considered whether the Veteran is entitled to SMC, and that issue is therefore referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The evidence does not show complete atrophy of both testes. 2. During the period on appeal, the Veteran's right epididymitis has not required long-term drug therapy, 1-2 hospitalizations per year, and/or intermittent intensive management. CONCLUSION OF LAW The criteria for a compensable evaluation for a right epididymitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Code 7523 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a January 2008 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records. In this regard, the RO obtained VA treatment records, reasonably identified private records, and VA examination and opinion reports. Also of record and considered in connection with the claim are various written statements provided by the Veteran as well as a transcript of the Veteran's hearing testimony provided in May 2013. To the extent that the Veteran testified that there may be additional private records relevant to his claim, the record was held open for 30 days following his May 2013 hearing for the submission of those records. However, the Veteran failed to submit additional evidence. The Veteran has not identified any other evidence relevant to these claims. The Board is also cognizant that the Veteran testified in May 2013 that he may have been put on medication by his private physician following his most recent VA examination in May 2012. However, he indicated that he did not know what kind of pills they were, and he did not state that the pills related to treatment for his right epididymitis. When directly asked by his representative whether he had been put on medication by his private provider since the May 2012 VA examination, the Veteran responded, "I can't remember." Based on the Veteran's testimony, the record was held open so that the Veteran could submit records from his private physician. However, no additional records were received. The Board finds the Veteran's ambiguous testimony as to possible treatment which may or may not be related to right epididymitis is insufficient to require remand for a new VA examination. The May 2012 VA examination findings are not so old that the Veteran's condition cannot be adequately rated. Indeed, the May 2012 examination report addresses the criteria necessary for a higher evaluation. The Board also notes that the Veteran refused physical examination during his most recent May 2012 examination. Moreover, the Veteran did not explicitly testify that his condition has worsened, requires long-term or intensive therapy, or is manifested by testicular atrophy. Nor has he submitted any clinical evidence showing that his condition has worsened or requires long-term therapy or intensive management, despite the opportunity to do so. In this regard, the record during the period on appeal is essentially negative for treatment for epididymitis and, in September 2008, the Veteran's private physician stated that he had not evaluated or treated the Veteran for his condition. The Veteran was provided the opportunity to submit records showing subsequent treatment for his condition, but failed to do so. Given the recent VA examination findings and lack of clinical evidence demonstrating any treatment, let alone a worsening condition, the Board finds that a new VA examination is not required in this case. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the Veteran's representative asked specific questions directed at identifying whether the Veteran had symptoms and treatment meeting the criteria for a higher rating. Moreover, the Veteran volunteered his treatment history and symptoms. The hearing discussion revealed that there were potential private treatment records outstanding, and the VLJ held the record open for the submission of additional records. None were forthcoming. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Additionally, neither the Veteran nor his representative has 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 VLJ hearing. The hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that there is no prejudice to the Veteran in deciding this case. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Thus, consideration of this matter on the merits at this time is appropriate. Analysis The Veteran has contended that his service-connected right epididymitis is severe enough to warrant a compensable rating. Service connection for right epididymitis was granted by a January 2000 rating decision, with a noncompensable rating assigned effective March 5, 1998. The Veteran has unsuccessfully sought an increased rating for his service-connected right epididymitis since his initial grant of service connection. His current claim for an increased rating was filed on December 7, 2007. Therefore, the period on appeal extends from December 7, 2006, one year prior to the date of receipt of that increased rating claim. 38 C.F.R. § 3.400(o)(2). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2012). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The disability at issue is evaluated under Diagnostic Code 7523. This provides a noncompensable disability rating when there is atrophy of one testis and a 20 percent disability rating is assigned when there is atrophy of both testes. 38 C.F.R. § 4.115b, Diagnostic Code 7523 (2012). VA treatment records dated from January 2007 to September 2011 document a diagnosis of "history of recurrent epididymitis." They further show a separate diagnosis of varicocele. However, they are essentially negative for complaints or treatment related to recurrent right epididymitis, nor do they show findings of atrophy, penis deformity, erectile dysfunction, or recurrent urinary tract infections associated with recurrent right epididymitis. Private treatment records show that in September 2008, the Veteran sought a letter from his private physician stating that the Veteran continues to suffer from epididymitis. The physician indicated a willingness to provide the requested letter, but clarified "that I have never seen him for this or treated him for this." The physician also noted the location of the epididymitis to be the left testicle. Physical examination revealed tenderness in the left scrotal area. Neither that September 2008 treatment note, nor any other private treatment note of record during the relevant appeal period documents treatment or findings related to right epididymitis. The Veteran was afforded a VA examination in January 2007. At that time, he reported symptoms of scrotal pain and swelling, and indicated that it is primarily the left testicle that bothered him. He also reported that he used to have pain upon urination, which resolved following medication. He took Tylenol for his pain with relief within an hour. He denied impotence and recurrent urinary tract infections. His activities of daily living were normal, and, though he stated that his condition slows him down some, he had missed no days from work due to his epididymitis. Physical examination revealed a normal penis and scrotal area. There was tenderness to palpation of the left scrotal area. There was no swelling, heat, or fistula present. An ultrasound revealed bilateral varices but was otherwise normal. The examiner assessed history of chronic epididymitis, not present on examination. The Veteran underwent another VA examination in December 2010 during which he reported recurrent intermittent swelling and pain in the scrotum since the eighties. He reported periods of pain and swelling for two to four weeks, which were followed by periods during which he was asymptomatic for a few weeks. He used Tylenol for scrotal pain. He denied lost days at work due to epididymitis. Physical examination revealed moderate tenderness and mild swelling of the right epididymis. There was no redness or warmth. There was also minimal tenderness in the left epididymis without swelling. The examiner diagnosed chronic recurrent epididymitis. Most recently, the Veteran was afforded a VA examination in May 2012. He reported current symptoms of tenderness and soreness in his right testicle. He denied voiding dysfunction, recurrent urinary tract or kidney infections, and erectile dysfunction. For his history of chronic epididymitis, he reported no treatment involving long-term therapy, hospitalization, or intensive management. Physical examination of the penis, testes, and epididymis was not performed per the Veteran's request; he reported normal anatomy and denied penile deformity, testicular deformity, deformity of the epididymis, or other abnormality. Regarding functional impact, the Veteran reported that his condition impacts his ability to work but that "he has learned how to live with it." Based on the above evidence, a compensable evaluation is not warranted for the Veteran's service-connected right testicular disorder under Diagnostic Code 7523. To warrant a compensable rating, there would need to be evidence of complete atrophy of both testes. The available VA treatment records, private treatment records, and VA examination reports during the relevant period on appeal are negative for any findings of atrophy of either testicle, let alone complete atrophy. Consequently, a compensable rating is not warranted under Diagnostic Code 7523. The Board has considered rating the Veteran's service-connected right epididymitis under another diagnostic code. Initially, the Board finds that diagnostic codes pertaining to the kidneys, bladder, and urethra are not relevant, as the medical evidence does not show involvement of the kidney, bladder, and urethra associated with the Veteran's right epididymitis. 38 C.F.R. §4.115b, DCs 7500-7519. Moreover, as the Veteran has denied deformity of the penis and erectile dysfunction, the Board finds that DCs 7520 (removal of half or more of the penis), 7521 (penis removal of glans), and 7522 (penis deformity with loss of erectile power), are not applicable. Potentially relevant, however, is Diagnostic Code 7525 pertaining to chronic epididymo-orchitis, as that diagnostic code relates to the epididymis. 38 C.F.R. § 4.115b, DC 7525. Diagnostic Code 7525 provides that the condition be rated as urinary tract infections pursuant to 38 C.F.R. § 4.115a. In evaluating urinary tract infections, a 10 percent rating is warranted for chronic epididymo-orchitis requiring long-term drug therapy, 1-2 hospitalizations per year, and/or requiring intermittent intensive management. A higher 30 percent rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalizations (greater than two times/year), and/or requiring continuous intensive management. 38 C.F.R. §§ 4.115a, 4.115b, DC 7525. Here, there is no evidence that the Veteran's recurrent epididymitis has warranted long-term therapy, any hospitalizations, or intensive management. On the contrary, the Veteran has reported treatment for his pain with Tylenol, which provides him relief within an hour. Moreover, the record does not show, and the Veteran has not reported hospitalizations or intensive therapy during the relevant period due to his right epididymitis. Accordingly, there is no factual basis on which to award a higher 10 percent rating under Diagnostic Code 7525. 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). In this case, the Veteran's symptoms, primarily right testicular pain and swelling, are not specifically set out in the Rating Schedule, although one might infer them to be contemplated in a condition productive of infection, hospitalizations and/or intensive management. In any event, the Board is prohibited from awarding an extra-schedular rating in the first instance, but to warrant referral, the Board must consider whether there is evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected disorders, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards contemplated in 38 C.F.R. § 4.115a, Diagnostic Code 7523. The Board concludes that referral is not warranted. With respect to the effect on employability, the Board notes that the Veteran has not asserted that his right epididymitis has caused marked interference with his employment. On the contrary, he has reported that while his condition may slow him down at times, he has learned to live with it and has not lost any workdays due to his right testicular disorder. He further reported pain relief with Tylenol within an hour. The Veteran's testicular disorder is his only service-connected disability. Lastly, there is no evidence that his right epididymitis has required frequent hospitalization. The Board thus concludes that referral for consideration of an extra-schedular rating is not warranted. 38 C.F.R. § 3.321(b)(1) (2012). As a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to a compensable rating for right epididymitis is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs