Citation Nr: 1329519 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-27 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable evaluation for right epididymitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 2004 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for right epididymitis and assigned a noncompensable evaluation for that disability, effective March 2, 2008-the date following his discharge from service. The Veteran timely appealed that issue. The Veteran requested a Board video conference hearing a Veterans Law Judge in July 2009; the Veteran was informed that he was scheduled for a March 2011 video conference hearing in a February 2011 letter. The Veteran did not appear for that hearing, and as of this time, he has not requested to reschedule that hearing nor has he given good cause for failing to appear for his scheduled hearing. Accordingly, the Board finds that the Veteran's request for a hearing has been withdrawn and will proceed to adjudication of his claim without the benefit of a hearing in this case. The Veteran did appear for a hearing before a Decision Review Officer (DRO) in March 2010, at which time he gave testimony relevant to the issue on appeal at this time; a transcript of that hearing is associated with the claims file. This case was also developed on the matter of entitlement to an increased rating for gastroesophageal reflux disease. The June 2008 rating action granted service connection and assigned a 0 percent rating. The Veteran filed a notice of disagreement and a statement of the case was issued. The Veteran filed a substantive appeal and requested a 30 percent rating. An October 2010 rating action awarded a 30 percent rating effective from the date of the grant of service connection. This constituted a substantial grant of the benefit sought and that matter is no longer in appellate status. FINDING OF FACT Throughout the appeal period, right epididymitis did not require that the Veteran be intermittently intensely managed, treated with a long-term drug therapy regimen, or hospitalized. CONCLUSION OF LAW The criteria for an initial compensable evaluation for right epididymitis have not been met. 38 C.F.R. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7599-7525 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service- connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased evaluation claim for right epididymitis arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Currently, the Veteran is assigned a noncompensable evaluation for his right epididymitis, effective March 2, 2008. That noncompensable evaluation is assigned under Diagnostic Code 7599-7525. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization are closely analogous. 38 C.F.R. § 4.20 (2013). Under Diagnostic Code 7525, chronic epidiymo-orchitis, the Rating Schedule instructs that the Veteran should be rated under the urinary tract infection criteria in 38 C.F.R. § 4.115a, unless the Veteran has tubercular infections, in which case he should be evaluated under 38 C.F.R. §§ 4.88b or 4.89 as appropriate. See 38 C.F.R. § 4.115b, Diagnostic Code 7525 (2013). As the evidence discussed below will show, the Veteran does not have tubercular infections, and therefore, evaluation under that rating criteria is not applicable to the case at bar. Under the relevant criteria in the Rating Schedule for urinary tract infections, the Rating Schedule instructs that poor renal dysfunction is to be evaluated under the Renal Dysfunction criteria. Otherwise, a 10 percent evaluation is warranted for long-term drug therapy, 1-2 hospitalizations, and/or requiring intermittent intensive management. A 30 percent evaluation is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) and/or requiring continuous intensive management. See 38 C.F.R. § 4.115a, Criteria for Urinary Tract Infections (2013). Turning to the evidence of record, the Veteran's service treatment records document that the Veteran reported a lump on his right testicle in September 2004; it had reportedly been present for a month prior to his seeking treatment. He stated that the pain was an aching sensation. The Veteran was diagnosed with right epididymitis at that time. The Veteran was put on ibuprofen and other medications in order to treat that condition. Subsequent treatment records document that the Veteran had adverse reactions to those medications. The Veteran again sought treatment in December 2004, at which time he stated that the lump had been present for 4 months and he was nervous it was not going away. He reported that he was having difficulty lifting weights and running; cold weather affected his pain. The Veteran's pain additionally worsened when he was nervous. He was referred for a testicular ultrasound which was taken approximately a week later. In the December 2004 testicular ultrasound, the Veteran's right testicle was found to measure 4.5 centimeters (cm) by 2.9 cm by 2.6 cm. There was a small spermatocele on the right epididymis, measuring 5 millimeters (mm) in diameter. Both testicles were shown to be intrinsically normal without intratesticular masses, though a small spermatocele, 5 mm in diameter, was noted in the midline of the right epididymitis. There was no direct sonographic evidence of epididymitis at that time. In January 2005, the Veteran was seen and the ultrasound results were discussed with him. He reported at that time that cold weather makes his right testicular pain worse. The Veteran was told to take Motrin for his right testicular pain and he was reassured that there was no testicular cancer or disease at that time. In February 2005, the Veteran was referred to a private physician, Dr. B.D.H., D.O., for a urological examination. During that examination the Veteran reported that his first episode of right testicular pain began six months prior and that was his worst episode. He had intermittent episodes that would last approximately 15 minutes, and that there was a time span of approximately four to six weeks between episodes of right testicular pain. He did not experience nausea and vomiting, and he did not notice a change in testicular position. On examination, the Veteran's scrotum was not shown to have any lesions or masses. There were no spermatoceles, hydroceles, varicoceles or masses of the epididymides; they were also non-enlarged. Both of his vasa were palpable. There was tenderness in the head of the right epididymis noted, but no mass effect. His testes were bilaterally descended without spermatoceles, hydroceles, varicoceles, or masses. His testicular parenchyma palpated normally on both sides. There were no strictures, discharge, masses or lesions noted with respect to his urethral meatus, and his penis did not have any Peyronie's, plaques, lesions or masses; he was circumcised. Dr. B.D.H. noted the normal testicular parenchyma bilaterally in the testicular ultrasound results and that the Veteran's urinalysis was clear. He diagnosed the Veteran with exercise-induced right epididymitis due to lack of scrotal support, and he informed the Veteran that he should increase his scrotal support. Dr. B.G.H. additionally sent a letter, dated the same day of the examination, which, in pertinent part, stated: . . . By his first description I thought he might be experiencing intermittent torsion, but after a full history and physical exam, I am convinced that he is experiencing intermittent epididymal discomfort secondary to recurrent epididymitis. This is non-bacterial and really does not need to be treated with antibiotics. What he needs to do is wear better scrotal support at all times and particularly when participating in increased physical activity. He and I have discussed this thoroughly. He does not need to return to our office unless he has continued problems . . . . In June 2005, the Veteran was seen for a follow-up for his right epididymitis, and expressed frustration that it was not getting better. The Veteran was subsequently prescribed Tequin and Naproxen for that condition. No further treatment for right epididymitis is noted in the service treatment records, with the exception of the Veteran reporting it on his February 2008 Report of Medical Assessment. It was noted at that time that the Veteran had a history of right testicular pain which occurred after epididymitis; he had a normal ultrasound. Within two weeks of separation from service, the Veteran filed his claim for service connection for right testicular pain. The Veteran underwent a VA general medical examination, including for his epididymitis, in April 2008. The Veteran gave a detailed history of the development of his epididymitis during service in that examination, referencing several of the service treatment documents noted above. As to his current problems, the Veteran noted that he has scrotal pain approximately once or twice a week, primarily after activity. These flares would last approximately 20 minutes to an hour and he takes 800 milligrams (mg) of Motrin and rested in order for it to resolve within the hour. He noted that in the military he missed weeks (of work) secondary to his intermittent pain. Over the last two years, however, he has missed approximately 12 days of work at either Home Depot or Lowe's secondary to his pain. He reported that he does not currently receive care for his scrotal pain nor does he receive treatment other than Motrin as noted above. He does wear a scrotal support to help with his pain. He reported that, functionally, he can no longer sprint, lift heavy weights or participate in dynamic sports, such as soccer, because it will exacerbate his pain; though he does still jog. On examination, the Veteran had a mildly tender right testicle to palpitation. There was no mass appreciated. His penis was circumcised. There was no evidence of direct or indirect hernias. Both epididymides were palpated, and there did not appear to be any masses, though slight tenderness of the right epididymitis was shown. He was diagnosed with chronic exercise-induced right epididymitis. The Board has reviewed the Veteran's post-discharge VA treatment records from the Wilkes-Barre, Cheyenne, and Philadelphia VA Medical Centers. Most of those treatment records document a past medical history of epididymitis which he treated with ibuprofen as needed. The Veteran did not generally seek treatment for his epididymitis in those records. In a July 2008 VA treatment record establishing care with VA, the Veteran reported that he was physically active at that time, indicating that he ran two miles and lifted weights for approximately an hour at least 4 times a week. He further reported that he has chronic exercise-induced right epididymitis, which usually only occurred after several hours of sustained heavy activity, such as an hour of weight lifting followed by a 5 mile run. When it occurred, the Veteran reported that the pain lasted 15-20 minutes and resolved with ibuprofen. He was being seen at that time for a physical to enter police academy. On examination, he was shown to have chronic exercise-induced right epididymitis, which usually began the day after exertion and lasted 15-20 minutes, then resolved with ibuprofen. The Veteran denied any urinary symptoms at that time. During a VA examination in April 2010, the Veteran noted that he was still taking 800 mg of Motrin as needed for his condition, though he reported that it was progressively worsening. The Veteran denied a history of hospitalizations or surgery, trauma to the genitourinary system, neoplasm, recurrent urinary tract infections, obstructed voiding, urinary tracts stones, renal dysfunction or renal failure, acute nephritis, hydronephrosis, cardiovascular symptoms, or erectile dysfunction. The Veteran did endorse flank or back pain, fatigue, and weakness, but denied anorexia, nausea, vomiting, fever, chills, lethargy, lower abdominal or pelvic pain, or any other symptoms. He also denied urgency, hesitancy/difficulty starting stream, weak or intermittent stream, dysuria, dribbling, straining to urinate, hematuria, urethral discharge, or renal colic; he voided every 1 to 2 hours during the day and once at night. His ejaculation was normal. He complained of right testicular tenderness. On examination, there was no abdominal or flank tenderness. He had a normal bladder examination, and he declined a rectal examination. An echogram of his scrotum revealed normal flow to both testicles. Both testicles demonstrate a homogeneous echo pattern with no focal abnormalities. There was a small right hydrocele. There was a 0.42 cm cyst within the right epididymis. The right epididymis was otherwise unremarkable. The Veteran was shown to be employed at Lowe's at that time. He reported that he lost 2 weeks of work over the last year due to gastrointestinal distress, unrelated to his right epididymitis. The examiner noted that the Veteran had problems with lifting and carrying, weakness or fatigue, and pain due to his right epididymitis, as well as some increased absenteeism. The Veteran's right epididymitis severely affected his ability to do chores, exercise, sports and recreation and mildly affected his ability to shop; it did not affect his ability to travel, feed, bathe, dress, toilet, or groom himself. On appeal, the Veteran avers that his evaluation for right epididymitis should be increased because he is limited in his physical activities due to that condition. Specifically, the Veteran indicated in his August 2009 substantive appeal, VA Form 9, that his "epididymitis causes severe pain and loss of work. . . . [and it] restrict[ed] [his] activities once or twice a week." Furthermore, in his March 2010 DRO hearing, the Veteran stated that he vomits a lot secondary to his gastroesophageal reflux disease (GERD) and that after vomiting he has scrotal pain. He reported going to the emergency room 2 or 3 times for his right testicular pain. He reported that his pain usually lasts 20 minutes to an hour and that he has been taking 800 mg of Motrin for the last three years. He further indicated that he wore scrotal support all the time and was restricted in his activities, such as being unable to sprint, run or was limited in his ability to lift weight. He also stated that he was forced to sit out activities in the Air Force and has been sent home from his job at Lowe's secondary to his right testicular disability. Based on the foregoing evidence, the Board finds that a noncompensable evaluation for the Veteran's right epididymitis is warranted. The Board does specifically acknowledge the Veteran's statements that his right epididymitis and testicular pain does appear to significantly limit his ability to exercise, lift and carry heavy weight, and perform other physical activities. The Veteran did indicate throughout the appeal period that he was still active, including jogging 5 miles and doing an hour of weightlifting; more recently, the Veteran indicated that he was forced to reduce the weight that he lifted and was basically just "staying toned," as noted during the DRO hearing. The Board additionally acknowledges the limitations regarding physical activity noted by the Veteran and by the VA examiners. In his hearing, the Veteran has argued that his use of Motrin constitutes "long-term drug therapy" under the relevant rating criteria. The Board notes that "use of ibuprofen as needed" is not a therapy regimen; it does not appear that the Veteran is prescribed Motrin on a regular basis by a physician for epididymitis. Moreover, the Board notes that "long-term drug therapy" in this case refers to some prescription-type therapies, such as antibiotics, which would be used to treat the Veteran's disability; as Dr. B.D.H. noted, this is not a disability that can be treated by a drug regimen, such as antibiotics, but rather is due to lack of scrotal support. The evidence of record does not demonstrate that there has been any long-term drug therapy to treat the Veteran's right epididymitis throughout the appeal period. Additionally, there is no evidence that the Veteran has been hospitalized for his right epididymitis throughout the appeal period. In his DRO hearing, the Veteran indicated that he sought treatment at an emergency room a couple of times. This is not reflected in the post service clinical records and would not constitute "hospitalization" anyway. There is no evidence of record that the Veteran has ever been formally-admitted into a hospital in order to treat him over the course of a day or two for his right epididymitis. Thus, the Board must conclude that there is no evidence of any hospitalizations with respect to the Veteran's right epididymitis. Finally, the Board finds that there is no evidence of intermittent intensive management. In this case, the Veteran self-medicates himself with Motrin or ibuprofen as necessary for the pain and restricts his activities so as to not exacerbate this pain. He also routinely wears a scrotal support. He does not, however, routinely or even intermittently seek a doctor's treatment for his right epididymitis, nor does he have such intermittently intensely managed by a medical professional. Therefore, the Board must conclude that there is no evidence of intermittent intensive management for his right epididymitis. In short, the evidence of record does not demonstrate that the Veteran is intermittently intensely managed for his right epididymitis, nor is he taking a long-term drug therapy regimen to treat that condition. The evidence also does not demonstrate that he has been hospitalized for his right epididymitis at any time throughout the appeal period. In light of these facts, the Board must deny a compensable evaluation for the Veteran's right epididymitis at this time. See 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7599-7525. The right testicle is not atrophied or missing (which would not warrant a compensable evaluation) and the left testicle is not affected. See Diagnostic Codes 7523, 7524. There is no other Diagnostic Code that would be applicable and warrant a compensable evaluation. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. The disability has not required even occasional hospitalization. The Veteran claims that it interferes with employment, but the interference is not shown to be marked. The Veteran also claims that it results in absenteeism. However, on his latest VA examination, he indicated that he had missed two weeks from work due to disability in the past year. On his gastrointestinal examination, he specified that the two weeks lost from work over the past year was due to his service-connected gastrointestinal disability. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Finally, the Board has also considered whether a remand is necessary in order to determine whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In this case, the evidence of record does not indicate that the Veteran is currently unemployed due right epididymitis, nor does he assert at any point throughout the appeal period that he is currently unemployed due to that disability. Rather, he only states that such condition restricts his activities at work and increased the time he needed to take off from work. Moreover, the Veteran is shown throughout the appeal period to either be a full-time employee at Home Deport or Lowe's, or a student at a university or in police academy. Since there is not any evidence of record that the Veteran's right epididymitis causes him to be unable to secure and follow substantially gainful employment, the Board finds that a remand for such an opinion is not required in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial compensable evaluation for right epididymitis is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs