Citation Nr: 1327495 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 06-00 206A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased (compensable) rating for residuals of right orchiopexy with epididymitis, to include on an extraschedular basis. ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1979 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In his November 2005 substantive appeal, the Veteran requested a hearing before the Board. In February 2009, prior to the scheduling of that hearing, the Veteran withdrew his request in writing. The Board remanded the issue for further development in December 2009 and September 2012. The Veteran was afforded a VA examination and addendum opinion in accordance with those remands. The issue was remanded again in March 2013 for extraschedular consideration. The issue was referred to the Director of Compensation and Pension in April 2013 and a decision regarding extraschedular evaluation was issued. This, the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's residuals of right orchiopexy are manifested by pain and tenderness without related urinary tract infection, a recurrent symptomatic infection requiring drainage and/or voiding dysfunction or the need for continuous intensive management or poor renal function. 2. The Veteran's residuals of right orchiopexy present an exceptional or unusual disability picture; resolving all reasonable doubt in his favor, his chronic testicular pain and limitation of motion due to the residuals of right orchiopexy with epididymitis. CONCLUSION OF LAW The criteria for a 10 percent extraschedular disability evaluation for residuals of right orchiopexy with epididymitis have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.115b, Diagnostic Codes 7523, 7525 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in March 2005, March 2006, and February 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For an increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letter and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Analysis Schedular rating The Veteran's service-connected disability is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7599-7523, on the basis of atrophy of the testis. Under Diagnostic Code 7523, complete atrophy of both testes warrants a 20 percent disability rating. Complete atrophy of a single testis warrants a noncompensable disability rating. The Board finds that throughout the period of the claim, a compensable rating is not warranted under Diagnostic Code 7523 as the evidence shows that the Veteran's testicles are not atrophied. The Board has alternatively considered whether a compensable rating would be warranted under Diagnostic Code 7525, for chronic epididymo-orchitis. Diagnostic Code 7525 provides that chronic epididymo-orchitis is to be rated on the basis of urinary tract infection. A 10 percent evaluation for urinary tract infection is warranted where there is a need for long- term therapy, with 1 to 2 hospitalizations per year and/or a requirement for intermittent intensive management. A 30 percent evaluation, under those same criteria, requires demonstrated evidence of recurrent symptomatic infection requiring drainage/frequent hospitalization (i.e., greater than two times per year), and/or a requirement for continuous intensive management. If the urinary tract infection results in poor renal function, it is rated as renal dysfunction. 38 C.F.R. §§ 4.115a, 4.115b including Diagnostic Code 7525. In this case, there is no evidence that the Veteran suffers from urinary tract infections; thus, the preponderance of the evidence is against entitlement to a compensable schedular rating on this basis. The Board also notes that the Veteran was afforded a VA genitourinary examination in March 2012 in which the examiner stated that he had a voiding dysfunction. As the Board noted in the September 2012 remand, if such voiding dysfunction is a residual of the in-service orchiopexy, the disability can be rated as such under the provisions of 38 C.F.R. § 4.115a. Here, pursuant to the Board's September 2012 remand instructions, an October 2012 VA examiner opined that the Veteran's voiding dysfunction was not caused by or proximately due to his service-connected disability. The examiner explained that the Veteran had orchiopexy of right testicular torsion in service but that his voiding dysfunction with intermittent urinary leakage was not reported until March 2012, and that in any event, there was no causal or anatomical link between the Veteran's service-connected disability and his voiding dysfunction. Indeed, the examiner added that voiding dysfunction was not associated with or a complication of orchiopexy. s such, a compensable schedular rating on this basis is not warranted. Extraschedular consideration In March 2013, the Board remanded the claim for initial extraschedular consideration. Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). To determine whether referral to the Chief Benefits Director of VA's Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321, VA must find that the applicable rating criteria do not reasonably describe the particular Veteran's disability level and symptomatology. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Then VA must determine whether the Veteran's exceptional disability picture manifests in other related factors, such as marked interference with employment and frequent periods of hospitalization, rendering the diagnostic criteria inadequate. Id.; see also 38 C.F.R. § 3.321(b)(1). When the evidence of record establishes these two elements, VA is required to refer the matter for extraschedular consideration. Id. Finally, as part of the extraschedular initial extraschedular consideration by the Chief Benefits Director and any subsequent adjudication in connection with the claim, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. After a referral has been made and the Director of the Compensation and Pension Service has made a determination regarding entitlement to an extraschedular rating, the Board has jurisdiction to review that determination on a de novo basis. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Veteran's residuals of right orchiopexy with epididymitis manifest with extreme pain of the testes. The Veteran has been treated with valium and other drug therapies. Additionally, the VA examiner in March 2012 noted that the Veteran's disability causes a functional impact. The examiner noted that the Veteran reported having episodes of severe testicular pain where he has difficulty moving and walking due to the pain. Further, the March 2012 VA examiner observed that the Veteran was seen on numerous occasions at the VA neurology clinic for treatment of his testicular pain, which the Veteran described as intense and indicated radiated to the lower abdomen and that he is unable to do any activity during these episodes. The Board reiterates that the schedular criteria regarding the testes do not address testicular pain and limitation of motion. Given the Veteran's treatment for pain and the March 2012 VA examiner's opinion noting functional impairment, to include possible intermittent limitation of motion as well as pain, the Board finds that the established schedular criteria are inadequate to describe the severity of the Veteran's service-connected residuals of right orchiopexy with epididymitis, presenting an unusual disability picture of marked interference with employment not accounted for in the Rating Schedule. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran has provided a competent, credible and highly probative account of orchiopexy symptomatology, specifically his level of testicular pain, to also include the effects of his disability on his occupational capability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Veteran's medical records show findings of chronic testicular pain. In April 2005, the Veteran's examiner specifically diagnosed chronic testicular pain due to scar tissue and neuroma formation at the surgical location in the scrotum above the testes. The Veteran's treatment records show years of treatment for testalgia, orchialgia, and tender testicles. Accordingly, the Board finds that the overall nature, extent, severity and frequency of the Veteran's service-connected orchiopexy, to include the severe nature of his pain and impairment, is most accurately reflected in a 10 percent extraschedular disability evaluation because it results in some limitation of motion as well as chronic pain. The Board finds that an evaluation in excess of 10 percent is not warranted on an extraschedular basis because it does not result in marked interference with employment or frequent periods of hospitalization. Again, the Board notes the use of significant pain killers associated with his testicular pain, the lay statements from the Veteran and others asserting the effects of the Veteran's testicular pain, and the continuous medical treatment records reporting the effects of and the lack of a solution to his chronic pain. Based on these factors and the other evidence of record, the Board again concludes that (I) the schedular criteria do not adequately describe the severity and symptoms of the disability and (II) the record sufficiently establishes that orchiopexy symptomatology, to include severe pain, presents an exceptional disability picture, making extraschedular evaluation appropriate. The Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the Veteran has already been granted entitlement to TDIU and there is no indication from the record or contention by the Veteran that he is unable to work due to this condition. Accordingly, further consideration of a TDIU is not warranted. ORDER Subject to the law and regulations governing payment of monetary benefits, a 10 percent rating, on an extraschedular basis, for residuals of right orchiopexy with epididymitis is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs