Citation Nr: 1328553 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 06-25 139A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to an initial rating higher than 10 percent for epididymalgia, testalgia, and prostatitis, claimed as genital pain due to a hydrocele, varicocele, and epididymitis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1993 to January 2006. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for GERD and for epididymalgia, testalgia, and prostatitis and assigned initial 0 percent (i.e., noncompensable) ratings for both disabilities retroactively effective from January 13, 2006, the first day following the conclusion of the Veteran's military service when he had returned to life as a civilian. He appealed for higher initial ratings for these disabilities. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran timely appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others. This will compensate him for this variance). In August 2006, the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board, but he has since, in October 2011, withdrawn that request. See 38 C.F.R. § 20.704(e) (2012). Meanwhile, in the interim, in November 2009, he had a hearing at the RO before a local Decision Review Officer (DRO). Since filing his formal appeal to the Board, so during the pendency of these claims, the Veteran's initial disability ratings were increased. In a May 2010 decision, the RO assigned a higher 10 percent initial rating for his GERD, retroactively effective from January 13, 2006, so as of the same date as the prior rating. In December 2012 the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development and consideration, including the provision of VA examinations for medical opinions reassessing the severity of these service-connected disabilities. And in a June 2013 decision since issued, on remand, the AMC assigned a higher 10 percent initial rating for the Veteran's epididymalgia, testalgia, and prostatitis, also retroactively effective from January 13, 2006, so also as of the same date as the prior rating. He has continued to appeal for even higher initial ratings for both disabilities. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (when a Veteran is not granted the maximum possible rating, the pending appeal is not abrogated unless he expressly indicates he is content with the new rating). The Board's December 2012 remand referred additional claims that had been raised by the Veteran and/or his representative during the pendency of this appeal, concerning: (1) entitlement to service connection for hypertension; (2) whether there is new and material evidence to reopen a claim of entitlement to service connection for a left upper extremity disorder, including thrombosis; (3) whether there is new and material evidence to reopen a claim of entitlement to service connection for irritable bowel syndrome (IBS) and/or colitis; and (4) entitlement to a higher rating for degenerative disc disease (DDD) of the lumbar spine. These other claims had not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board did not have jurisdiction over them so referred them to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). The Veteran's representative more recently has re-raised the still additional issue of entitlement to a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in an increased- rating claim when the issue of unemployability either is raised expressly or by the record. A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met). Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case was posttraumatic stress disorder (PTSD). Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim. But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Thus, under Rice and this line of precedent cases, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is at least partly predicated on the service-connected disabilities for which the Veteran is requesting higher ratings in this appeal. Since, however, this derivative TDIU claim has not been initially considered by the RO at the AOJ and the Veteran has numerous other service-connected disabilities, as well, which also factor into whether he is entitled to a TDIU, this derivative claim requires further development before being decided. Thus, the Board is remanding this claim to the RO via the AMC. VA's Office of General Counsel has indicated that remanding the derivative TDIU claim in this circumstance does not preclude the Board from going ahead and deciding the claims for higher ratings for the disabilities partly forming the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). FINDINGS OF FACT 1. The Veteran's GERD manifests as dysphagia, pain, regurgitation, vomiting, and nausea, and causes considerable impairment of his health. 2. His epididymalgia, testalgia, and prostatitis manifests as testicular pain, voiding dysfunction, and erectile dysfunction (ED). However, the ED is already separately rated. 3. His voiding dysfunction manifests as obstructed voiding and urinary frequency, but predominantly as urinary frequency. CONCLUSIONS OF LAW 1. The criteria are met for a higher 30 percent initial rating for the GERD, though no greater rating. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7346 (2012). 2. The criteria are not met for an initial rating higher than 10 percent for the epididymalgia, testalgia, and prostatitis under DC 7525. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, DC 7525 (2012). 3. But the criteria are met for a separate 10 percent rating for the prostatitis under DC 7527 from July 1, 2009 to April 15, 2013, and for a higher 20 percent rating from April 16, 2013 onwards. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, DC 7527 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of this notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. See also 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements. See id., at 486. But a VCAA notice error is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In cases where service connection has been granted and an initial disability rating and effective date assigned, notice under section 5103(a) is no longer required because the purpose that the notice was intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. Thus, here, because service connection for GERD and epididymitis, testalgia, and prostatitis was granted, VA's notice obligation concerning these claims has been met. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, the RO provided the Veteran with the notice required under the VCAA and under Dingess in letters mailed on May 16, 2005, and March 20, 2006. But according to the holding in Goodwin v. Peake, 22 Vet. App. 128, 137 (2008), and this line of precedent cases, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" issue of the initial rating assigned for the disability, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved. And this has been done; the Veteran has received an SOC and two SSOCs discussing the downstream disability rating element of his claims, citing the applicable statutes and regulations and discussing why higher initial ratings were not assigned. See Dunlap, 21 Vet. App. at 119 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). VA also has a duty to assist him in fully developing these claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining evidence that might tend to support these claims, such as his service treatment records (STRs) and other pertinent treatment records, VA and private, as well as providing him an examination or obtaining a medical opinion when needed to make a decision on the claims. See id. This duty to assist has been satisfied. His STRs and post- service medical records have been obtained and associated with the claims folder for consideration, and he has not alleged that any other outstanding records are needed to decide his claims. He also has been afforded two VA gastrointestinal examinations in May 2005 and April 2013, and three VA genitourinary examinations May 2005, July 2009, and April 2013. As well, an independent medical opinion regarding his genitourinary symptoms and whether any of them could be specifically traced to a particular disability was also obtained in June 2013. These medical reports, especially when considered collectively, provide the information needed to properly rate his disabilities, so are adequate for adjudicating his claims. Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002). The Veteran testified at a hearing at the RO in November 2009 before a local DRO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that a hearing officer, pursuant to 38 C.F.R. § 3.103(c)(2), has two duties. The first is to explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, the parties agreed that the issues were the extent of the Veteran's symptoms due to his GERD and epididymalgia, testalgia, and prostatitis, including in terms of their frequency and severity, and whether considering this they were sufficient to accord higher disability ratings. The hearing also covered whether two different disabilities should have been service connected, but those issues are not presently before the Board. During the hearing, there was no confusion that the Veteran needed to present evidence of an increase in symptomatology, as that comprised the bulk of his testimony. He did not raise any new issues pertaining to these claims during the hearing. The presiding DRO did not suggest additional evidence, however, since the hearing both the RO/AMC and the Board obtained medical opinions addressing the severity of the Veteran's disabilities. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claims and to suggest the submission of evidence when such evidence is missing or has been overlooked have been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the DRO hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497- 98. Moreover, even assuming there was such a deficiency, the Board finds that it did not prejudice the Veteran's claims. In Bryant, the Court held that, although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability (keeping in mind that the claim in that case was for service connection rather than, as here, for higher ratings for disabilities already determined to be service connected), the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Bryant, 23 Vet. App. at 498-99. In this case, given the development of the Veteran's claims that has occurred, the Board finds that any deficiency in the DRO hearing was non-prejudicial. See id. Moreover, as already explained, the Board does not find any deficiency in the hearing officer's duties under Bryant, and none has been alleged. Consider, as well, that the Board also is remanding the issue of whether the Veteran is entitled to a TDIU due to his service-connected disabilities for further development, so is not denying this additional component of his claims. He also, as mentioned, has evidenced his personal knowledge of the type of evidence and information needed to substantiate his claims, indeed, as evidenced by the supporting medical evidence he has submitted throughout the pendency of these claims. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). Increased Ratings Since the Veteran's claims for increased disability ratings for his GERD and epididymalgia, testalgia, and prostatitis, arise from his disagreement with the initial ratings assigned after service connection was granted, the Board finds that some discussion of the Fenderson case is warranted. In Fenderson v. West, 12 Vet. App. 119, 125-126 (1999), the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expressed dissatisfaction with the assignment of an initial disability evaluation where the disability in question had just been service connected. In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the Fenderson scenario, however, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" rating. Fenderson, 12 Vet. App. 125-126. Regardless, the Court also has extended this practice even to increased-rating claims that do not involve initial ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). In deciding what rating is appropriate, consideration must be given to the history of the disability and all potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14 (2012). A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See 38 U.S.C.A. § 1155 (2011); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, which is contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different DCs. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Hyphenated DCs may be used. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be "built-up" by using the first two digits of that part of the Rating Schedule that most closely identifies the part, or system, of the body involved and adding "99" for the unlisted condition. See 38 C.F.R. § 4.27 (2012). The Veteran's lay statements and testimony are considered competent evidence when describing his symptoms of disease or disability that are non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). But his lay statements and testimony regarding the severity of his symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. And the ultimate probative value of his lay testimony and statements is determined not just by his competency, but also his credibility to the extent his statements and testimony concerning this is consistent with this other evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See, too, 38 C.F.R. § 3.159(a)(2). GERD The Veteran's GERD has been rated as 10-percent disabling effectively since January 13, 2006, under 38 C.F.R. § 4.114, DC 7346, which concerns hiatal hernia. Under DC 7346, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating requires persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. A 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. Turning to the evidence, during his May 2005 VA examination, prior to his separation from service, it was noted the Veteran had experienced GERD symptoms since 2001, for which he had undergone a laparoscopic Nissen fundoplication in January 2004. Prior to the surgery, he had daily symptoms. After, he had almost total relief of symptoms for about nine months. When his symptoms returned, he was given an esophagogastroduodenoscopy (EGD), which revealed esophagitis. He said he was told the Nissen was still intact. Since his symptoms had returned, Nexium and ranitidine had been prescribed. He also had had to raise the head of his bed and put himself on dietary restriction. Despite his lifestyle changes and medication regimen, he had breakthrough symptoms four or five times a week. But he denied dysphagia, regurgitation, abdominal pain, nausea or vomiting, and his weight was stable. In August 2005, the Veteran was briefly hospitalized due to increased epigastric pain during the preceding week. He complained of nausea and vomiting and said he was unable to keep food down. He was given an emergency upper gastrointestinal (UGI) series of tests. The test results showed an unremarkable esophagus. There was unobstructed flow through the gastroesophageal junction. He was diagnosed with severe acid reflux and was instructed to follow up on that diagnosis for additional treatment. His health did not trigger medical board proceedings. The Veteran's military service ended in January 2006. In an April 2006 statement, the Veteran discussed the severity of his symptoms that had led to the three-day hospitalization in August 2005. He was unable to sleep and having near-constant regurgitation. His esophagus was painful, he had dysphagia, and was vomiting. He said that, after hospitalization until the time of his statement, he had continued to experience daily dysphagia, regurgitation, and chest pain. He also said that he took multiple medications (prescription Prilosec, cimetidine, rantidine) on a daily basis to help control the severity of his symptoms. He indicated his bed was raised at the head, and that he followed a strict diet, which also helped with his symptoms. In May 2007, the Veteran had some epigastric and mid- epigastric pain. It was noted he was having GERD symptoms despite taking proton pump inhibitors (PPIs). In August 2007 he complained of epigastric distress and diarrhea, but denied nausea, vomiting, and fever. He underwent another EGD. His esophagus appeared normal, and he was advised to continue with a low-fat diet and prescribed Nexium and Zantac. He weighed 210 pounds. In April 2008, it was noted the Veteran's GERD was controlled with a PPI, which did not seem to aggravate his symptoms. He was having loose stools and treating with Metamucil. In January 2009, he weighed 235 pounds, and his body mass index (BMI) was 30.2. He inquired about joining VA's MOVE program, a diet and fitness regimen. During his November 2009 DRO hearing, the Veteran testified that he was a Corpsman and resultantly has some knowledge and training pertaining to medicine. His DD Form 214 confirms that his primary military occupational specialty (MOS) was field medical service technician. During the hearing, he said he had pyrosis and dysphagia frequently and was regurgitating several times a night, exacerbating the dysphagia. He said substernal pain woke him up every night. He said his weight had gone back and forth about 15 pounds, and that he lost the weight when his symptoms were bad. He said that his GERD affected his ability to work, because his job required travel. His GERD symptoms make it difficult to drive long distances and hard for him to sleep in a bed that he cannot raise off the floor at the head. He also said, generally, his symptoms wake him about twice a night, so he loses sleep and is not his best in the morning. In a July 2010 statement, the Veteran said that he has consistent pain and burning above, at, and below his sternum. He said that he regurgitated after being seated for a long time, and while sleeping. He had dysphagia. He was on medication, which he took multiple times daily, and had the head of his bed lifted about 8 inches off the floor. In August 2010 it was noted the Veteran had gained about ten pounds. In March 2011 he weighed 233 pounds. In May 2011, the Veteran had epigastric pain on palpation. He said he was having dysphagia, nausea, vomiting, and diarrhea. He was referred to the VA gastroenterology clinic due to a reoccurrence of his GERD symptoms. He said they had become worse during the preceding two years. He treated himself with prescription Omeprazole twice a day and over- the-counter Tagamet and Rolaids. In December 2011 it was noted his GERD was poorly controlled, and it was recommended he have another EGD. It was also noted his weight had not increased or decreased by 10 percent or more in the preceding six months. He weighed 229 pounds. In February 2013, it was again noted that his weight had not increased or decreased by 10 percent or more in the preceding six months. He still had not had the EGD, and he indicated he wanted to avoid surgery if possible. He weighed 240 pounds. During his April 2013 VA examination, the Veteran was diagnosed with GERD. He complained of heartburn, regurgitation, and reflux with epigastric discomfort occurring on a daily basis. He takes over-the-counter Rolaids and prescription Prevacid on a daily basis, otherwise he will experience symptoms. He reported occasional nausea and vomiting, which he said occurred about monthly. He also reported occasional difficulty swallowing, but indicates he chews his food well and drinks more to prevent that. He has blood in his stool about every other bowel movement. He estimates that he has experienced these symptoms for the last ten to twelve years, but also reported that his weight had been steady. He did not report problems with aspiration. He did not report any periods of complete incapacity. He does not have a history of hematemesis and demonstrated no evidence of anemia, malnourishment, or malnutrition. He reported missing no work due to his GERD in the six months prior to his unemployment, and the VA examiner opined that the Veteran's GERD would not affect his ability to work. The VA examiner indicated the symptoms consisted of pyrosis, reflux, regurgitation, and mild nausea. He did not think the Veteran had persistently recurrent epigastric distress. In a July 2013 statement, the Veteran asserted that he has daily nausea, melena, heartburn, constant reflux, regurgitation, pain, and dysphagia. He said he vomits often. He wakes up at least twice a night. His weight swings back and forth by about 15 pounds; he said that he loses weight when his symptoms are bad and then gains it back when they have subsided. As already explained, laypeople are generally competent to attest to symptoms that are non-medical in nature, such as having epigastric pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, in addition, the Veteran has been shown to have some medical training, as he was a field medical service technician while in the military. Thus, the Board finds him competent to describe his symptoms. And although there is some divergence in the degree of severity of his symptoms when comparing his personal statements with the medical evidence, he for the most part has been consistent in his statements. Rucker v. Brown, 10 Vet. App. 67 (1997) (when determining whether lay evidence is satisfactory, the Board may consider its consistency with other evidence submitted on behalf of the Veteran). The bulk of his symptoms are not necessarily verifiable even by objective testing, and the narratives of his symptoms in the medical records are second-hand accounts, in that they are recorded by the evaluating physician. Therefore, it is likely, especially given the consistency among his statements, that his evaluating physicians did not always record all symptoms or their severity. The Board finds any disparity in the description of his symptoms to be relatively minor, and finds his lay testimony concerning them credible. As competent and credible, his lay statements therefore are ultimately probative. Applying the rating criteria to the facts of this case, and in resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence supports increasing the rating for his GERD to the next higher level of 30 percent. See 38 C.F.R. §§ 4.3, 4.7. He clearly has met the requirements for a 10 percent rating in that he has always shown at least two of the symptoms that are required for a 30 percent rating. The records of his August 2005 hospitalization do not contain extensive detail, however, he submitted a statement in April 2006 summarizing the symptoms he was having prior to that hospitalization, and up to the date of his statement. He said that his epigastric pain had increased for a week, and that he was nauseated and vomiting and could not hold food down. His symptoms were severe enough to warrant hospitalization. Two years later, he had to have an EGD, and his doctors are now recommending that he have yet another. He has been prescribed medication that he must take several times every day to control his symptoms since the August 2005 hospitalization, and he also has had to make changes in his life, such as raising the head of his bed while sleeping and avoiding certain foods and drinks. He has complained of frequent dysphagia, pain, regurgitation, and vomiting or nausea consistently throughout the pendency of his claim. In short, his symptoms significantly rise above the level of 10-percent disabling, and in resolving all reasonable doubt in his favor find they cause considerable impairment of his health. Quite simply, this is a condition affecting him each and every day, and his symptoms more closely approximate the level of 30 percent. The Board also has considered whether his symptoms warranted an even higher 60 percent rating, but find they do not. His health is not severely impaired by his GERD. He reported missing no work in the last six months of his employment, and the VA examiners did not think that his GERD would affect his ability to find employment. Although he reported that his weight fluctuated by about 15 pounds, he did not report weight loss until 2009, at which time he weighed 235 pounds. He weighed 240 pounds in 2013. However, even if he had lost 15 pounds, that is less than 10 percent of the original weight of 235 pounds. Under the regulation, a material weight loss is required for a 60 percent disability rating; his alleged weight loss does not rise to the level of even minor weight loss. See 38 C.F.R. § 4.112 (minor weight loss means a weight loss of 10 to 20 percent of the individual's baseline weight). He also has not been shown to have anemia or hematemesis. Finally, he has testified that his symptoms admittedly will ebb and flow in severity, and that he experiences periods of time when they have eased such that he is able to eat without as much distress, which in turn has resulted in him gaining back any weight that he had lost. Accordingly, the Board finds that he entitled to a higher 30 percent disability rating for his GERD on a schedular basis, but no greater rating. While the Board does not have the authority to grant an extra-schedular rating in the first instance, it does have the authority to decide whether a claim should be referred to VA's Director of the Compensation and Pension Service for special consideration when the issue either is raised by the claimant or reasonably raised by the evidence of record. See Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008), citing 38 C.F.R. § 3.321(b)(1). In this case, the rating criteria for the Veteran's GERD reasonably describe and contemplate the extent and severity of this disability, including his specific symptoms involving dysphagia, pain, regurgitation, vomiting, and nausea. In other words, he does not experience any symptoms or have any impairment not already encompassed in the applicable DC. As his disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, found to be adequate. Consequently, referral for extra-schedular consideration is not required under 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Epididymalgia, Testalgia, and Prostatitis The Veteran's epididymalgia, testalgia, and prostatitis are rated together as one disability, by analogy, under DC 7599- 7525, meaning that the criteria under DC 7525 will be applied to his symptoms. See 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning hyphenated ratings). Under DC 7525, which applies to epididymo- orchitis, the symptoms are to be rated as a urinary tract infection under 38 C.F.R. § 4.115a. See 38 C.F.R. § 4.115b, DC 7525 (2012). Section 4.115a of the Rating Schedule provides descriptions of various levels of disability in each of the symptom areas of renal or voiding dysfunctions, infections, or a combination of these. Where DCs refer the decision maker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction do not cover all symptoms resulting from genitourinary disease, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a. Under the criteria applicable to a urinary tract infection, a 10 percent rating is warranted when there is long-term drug therapy, one to two hospitalizations per year, and/or a requirement for intermittent intensive management. A 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. More severe symptoms are to be rated as renal dysfunction. 38 C.F.R. § 4.115a. Turning to the facts, during his May 2005 VA examination the Veteran was diagnosed with epididymalgia, testalgia, and prostatitis. There was no evidence of a varicocele or hydrocele. He complained of having epididymitis at least three or four times a year, and that his right testicle was painful, especially after having sex. He also mentioned that a previous catheterization had caused irritation in his urinary tract. His prostate was tender, and the examiner opined the pain in the testicle and epididymis probably was caused by the prostate, as the Veteran had mild prostatitis. In an April 2006 statement, the Veteran explained that his testicles are frequently in severe pain. Having sex, running, bending, or just standing around can cause pain, and he is restricted in most activities. In August 2007, the Veteran was examined by a private urologist, Dr. S.L.B. Her report noted he had about a ten- year history of chronic right testicular and groin pain. He has epididymitis a few times a year where he has a swollen scrotum. He rarely takes antibiotics for this problem, and reported to his doctor that it usually cleared up on its own. He denied having a history of dysuria or any other urinary problems. In September 2007 the Veteran's groin pain, at its worst, rated 7 out of 10. Dr. S.L.B. indicated the Veteran had been treated for epididymitis multiple times, but also that the discomfort often resolves spontaneously. In March 2008, the Veteran indicated he was having intermittent problems with having to strain to urinate. In April 2008, Dr. S.L.B. submitted a statement wherein she set forth the Veteran's history of groin pain due to testalgia, epididymalgia, and prostatitis. She also said that radiologic studies have also revealed a small right hydrocele and a left varicocele. She also indicated he has more recently developed ED and voiding dysfunction due to his urological conditions, although she did not specify which conditions were causing these newer problems. She said that his groin pain has been ongoing for approximately the previous ten years, and she opined that it would continue, such that the Veteran would need to continue managing those symptoms with drug therapy, which included prescription narcotics and nonsteroidal anti-inflammatories. One of the Board's remand directives in December 2012 was to have this statement clarified. Specifically, the Board wanted more information on which conditions were causing erectile and voiding dysfunction. Clarification was not obtained, however, because the Veteran did not authorize VA to obtain records from this physician. In a March 2009 decision, the Veteran's ED was assigned a separate rating of 0 percent under DC 7599-7522, retroactively effective from March 26, 2008. He also, as of that same date, has been receiving special monthly compensation (SMC) on account of loss of use of a creative organ under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a). During his July 2009 VA examination for his ED, the Veteran complained of chronic right testicular pain. He had constant mild aching discomfort that increased to a sharp pain with sudden movement or if his testicle was touched roughly. When this happens, moderate to severe pain lasts for the rest of the day. He said that he has some hesitancy and pain on urination, but no incontinence issues. He had to get up twice a night to urinate. His kidneys were functioning normally. He takes Viagra to achieve an erection. In a July 2010 statement the Veteran said that he has frequent voiding troubles. He said that he cannot fully empty his bladder, and that he has a weak stream while urinating. Afterwards, urine will dribble out onto his clothing. During his April 2013 VA examination, the Veteran was diagnosed with chronic epididymitis, right-sided orchalgia, a right hydrocele, and a right varicocele. During the examination, the VA examiner was unable to elicit any significant direct or indirect hernia in the right inguinal region. The Veteran was not showing any symptoms of prostatitis. Instead, the examiner said the Veteran was describing ongoing issues of right-sided orchalgia. The pain from the right-sided orchalgia radiates to the inguinal region. The Veteran also had right testicular pain and tenderness. He reported flare-ups, which can be caused by sexual activity. He has some degree of ED but prescribed Viagra allows him to achieve an erection. He does not have significant pain on urination or ejaculation. Testicular pain does not incapacitate him. He has taken various medications to treat the pain over the years, including hydrocodone, Celebrex, Lyrica, and over-the-counter anti- inflammatories, and he has also used ice. The examiner indicated the Veteran's epididymitis is chronic, always causing discomfort, which flares two to three times a year, lasting for about ten days to two weeks in duration. Flares can also be caused by overexertion, getting bumped into, or having his testicles manipulated. He continuously treats himself with both prescribed and over-the-counter medications, as well as ice, rest, and wearing more supporting underwear. The right testicular region swells occasionally. He denied blood in the urine or having a history of urinary tract infections. He has some mild voiding dysfunction, including hesitancy and straining, but these symptoms are mild and intermittent. He occasionally has some postvoid dribbling or mild urinary leakage, which has been present for five or six years. He does not wear any type of protective garment. He does feel urgency and has to urinate at least once an hour, which has been present for about ten years. He has nocturia about three or four times a night. The VA examiner opined that these symptoms - pain and voiding dysfunction - are caused by the Veteran's service- connected disabilities, along with the hydrocele and varicocele. All of these conditions are inextricably intertwined, and it would not be possible to quantify the amount each condition contributes to his symptomatology. This examiner also said the Veteran's conditions and symptoms have been persistent, but lightly and gradually worsening over time. He did not think that the Veteran's documented inguinal hernia, which he could not detect, was contributing to his pain. He also did not think the Veteran's conditions affected his ability to work. A June 2013 independent medical opinion agreed that the Veteran's urological symptoms are not from his service- connected low back disability, and that his urological disabilities should be considered in aggregate. That is, it would not be possible to quantify the contribution of each diagnosis to his disability, and so all of the symptoms are considered attributable to the service connected disability. Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected disability from a non-service-connected condition, then the symptoms are attributed to the service-connected disability because this doubt must be resolved in the Veteran's favor under 38 C.F.R. §§ 3.102 and 4.3). As above, the Board finds the Veteran's written and oral testimony regarding his symptoms probative, that is, both competent and credible. And although the Board does not find that a rating higher than 10 percent is warranted under DC 7525, a separate rating (so additional compensation nonetheless) is being assigned instead under DC 7527 to address his voiding dysfunction. Under DC 7525, which is rated as a urinary tract infection, a higher 30 percent rating requires recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management. The evidence does not show the Veteran having any genito-urological infection requiring drainage or hospitalization. His symptoms also have not required intensive management. Indeed, although he has been prescribed medication to control his symptoms on a long-term basis (which warrants his current 10 percent rating), the evidence shows he has epididymitis only three or four times a year and that it frequently clears up on its own, so spontaneously. He does not take antibiotics. His testicular pain does not incapacitate him. This code, however, does not address his voiding symptoms. The April 2013 VA examiner and the June 2013 independent medical examiner both indicated that the Veteran's urological symptoms are impossible to separate as originating from either his service- or non-service- connected disabilities, thus the symptoms are considered as having come from the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). He has voiding symptoms. These symptoms are not addressed by DC 7525, but he is service connected for prostatitis, which would be rated under DC 7527. This code applies to prostate gland injuries, infections, hypertrophy, and postoperative residuals. Under DC 7527, symptoms are rated as voiding dysfunction or urinary tract infection, whichever symptoms are predominant. Id. As discussed above, the evidence does not warrant a rating higher than 10 percent for urinary tract infection. Voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding based on the nature of the disability in question. 38 C.F.R. § 4.115a. The Veteran has problems with both frequency and obstructed voiding, although the evidence shows his frequency symptoms are the more predominant. With regards to urinary frequency, a 10 percent rating is assigned for a daytime voiding interval of between two and three hours, or; awakening to void two times per night. A 20 percent rating is warranted for a daytime voiding interval of between one and two hours, or; awakening to void three to four times per night. Where there is a daytime voiding interval of less than one hour, or awakening to void five or more times per night, a maximum 40 percent rating is warranted. Id. The evidence shows he has had to get up to urinate at least twice a night since July 2009, which has increased to four times a night since April 2013. With regards to obstructed voiding, a 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id. Unfortunately, the Veteran's obstructed voiding has not been objectively tested, and there are no medical records in the file containing information that would be required to determine whether a 10 percent rating is warranted for obstructed voiding since he was service connected for prostatitis. He has not been shown to have ever been catheterized during the pendency of his claim, although a reference was made to a catheterization during active duty, so a 30 percent rating would not be warranted. Further, even if his obstructed voiding was to be tested, these contemporaneous tests in all likelihood would not provide information on the severity of this condition in years past, since January 2006. But see Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (discussing situations when it might be necessary to obtain a "retrospective" medical opinion). Therefore, at least in the circumstances presented, rating his urinary frequency would provide him the most optimal outcome at this time. Thus, the Board finds he entitled to a separate rating for his prostatitis under DC 7527, of 10 percent from July 2009 to April 2013, and of 20 percent from April 2013 to the present, because of his urinary frequency. Awarding a separate rating for this symptom is not pyramiding, which is prohibited by 38 C.F.R. § 4.14, as his urinary frequency is not addressed under DC 7525. He is rated at 10 percent under that code because he has been on long-term drug therapy. The drugs that he takes do not address his frequency, rather, his pain. Thus, he was not being compensated for that symptom before while the disabilities were rated under a single DC. As also discussed, the Board does not have the authority to grant an extra-schedular rating in the first instance, but does have the authority to decide whether a claim should be referred to VA's Director of the Compensation and Pension Service for special consideration when the issue either is raised by the claimant or reasonably raised by the evidence of record. See Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008), citing 38 C.F.R. § 3.321(b)(1). Here, the rating criteria for the Veteran's epididymalgia, testalgia, and prostatitis reasonably describe and contemplate the extent and severity of this disability, including his specific symptoms involving testicular and epididymis pain. He also has urinary frequency symptoms, which are being addressed in this decision in the assigning of the additional rating. As his disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, found to be adequate. Consequently, referral for extra-schedular consideration is not required under 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER A higher 30 percent schedular rating for the GERD is granted, subject to the statutes and regulations governing the payment of VA compensation. Entitlement to an initial rating higher than 10 percent for the epididymalgia, testalgia, and prostatitis (claimed as genital pain due to a hydrocele, varicocele, and epididymitis) is denied. However, a separate rating for the prostatitis under DC 7527 is granted, specifically, a 10 percent rating from July 1, 2009 to April 15, 2013, and a 20 percent rating since April 16, 2013, because of urinary frequency, subject to the statutes and regulations governing the payment of VA compensation. REMAND Further development is necessary prior to adjudicating the Veteran's inferred claim for a TDIU. He has been unemployed since October 2012. He has asserted that his GERD has affected his ability to work, as it prevents him from sleeping well and makes traveling difficult. The April 2013 VA examiner did not believe the GERD affected employability. But in March 2013, so the preceding month, the Veteran's VA physician had indicated that the Veteran's low back disability and depression significantly affected his ability to work in his previous job, but did not comment on employability in general. As service connection is additionally in effect for DDD of the lumbar spine, depression, degenerative joint disease (DJD), i.e., arthritis, of the shoulders, tinnitus, traumatic arthritis of the right wrist, patellofemoral pain syndrome of the knees, and ED, that is, aside from the GERD, epididymalgia, testalgia, and prostatitis, a medical opinion is needed concerning whether these disabilities in combination preclude the Veteran from re-entering the workforce and obtaining employment that could be considered substantially gainful versus just marginal in comparison. Additionally, the record does not contain VCAA notice with respect to establishing entitlement to a TDIU. So he also needs to be provided this requisite notice. Accordingly, this derivative TDIU claim is REMANDED for the following additional development and consideration: 1. Send the Veteran a VCAA notice letter apprising him of the type of evidence and information needed to substantiate his derivative TDIU claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 2. Ask him whether he has received any additional (more recent) evaluation or treatment for his service-connected disabilities. If he has, and the records are not already in the file, then obtain them with his cooperation, including all records of evaluation or treatment he has received from VA for these service- connected disabilities since March 2013. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify him of this in accordance with 38 C.F.R. § 3.159(c) and (e). 3. Upon receipt of all additional records, schedule a VA compensation examination to assess the severity of the Veteran's service-connected disabilities, but especially to determine their impact, either individually or in combination, on his employability. All appropriate diagnostic testing, including testing for obstructed voiding, and evaluation needed to make these determinations should be performed, and all clinical findings reported in detail. The examiner is asked to assess the severity of all of the Veteran's service- connected disabilities (DDD of the lumbar spine, depression, DJD of the shoulders, tinnitus, GERD, epididymalgia, testalgia, prostatitis, traumatic arthritis of the right wrist, patellofemoral pain syndrome of the knees, and ED) and their effect on his ability to obtain and maintain substantially gainful employment versus what would be considered marginal employment in comparison, given his level of education, prior work experience and training, but not taking into account his age or any non-service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. If it is determined he is indeed incapable of obtaining or retaining substantially gainful employment because of the severity of these service-connected disabilities, then the examiner is additionally asked to indicate the approximate date of onset of this total occupational impairment. In doing so, the examiner is asked to reconcile any opinion with all evidence of record. It is imperative the examiner discuss the rationale of the opinion in response to this question, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 4. Then adjudicate this claim of entitlement to a TDIU. If denied, send the Veteran and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs