Citation Nr: 1333374 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-16 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial rating for removal of the right testicle with left testicle hydrocele and impotency, evaluated as 30 percent disabling from December 8, 2008. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating by the RO in St. Petersburg, Florida, which granted service connection for the removal of the right testicle with left testicle hydrocele and impotency and assigned an initial 30 percent rating. Special monthly compensation for loss of use of creative organ was also granted. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing held with the VA Medical Center (VAMC) in Palm Beach, Florida in March 2013. A transcript is associated with the electronic record. In April 2013, the Board remanded this matter for further development. Such has been completed and this matter is returned to the Board for further adjudication. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDINGS OF FACT 1. The Veteran is in receipt of the maximum allowable rating under the schedular criteria for testicular disorders, and he has been awarded the maximum special monthly compensation allowable based on loss of use of a creative organ. 2. The Veteran does not experience symptomatic infections requiring drug therapy, hospitalization, or any intensive management. 3. The Veteran's case was referred to the Director of Compensation and Pension Service for extra-schedular consideration and, in July 2013, the Director determined that an extra-schedular rating was not warranted for the Veteran's service-connected disability. CONCLUSION OF LAW A higher rating for removal of the right testicle with left testicle hydrocele and impotency is not warranted. 38 U.S.C.A. §§ 1114, 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350, 4.3, 4.7, 4.115b (Diagnostic Code7524) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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. 2013); 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. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 claim arises from an appeal of the initial evaluation following the grant of service connection. Through a December 2008 notice letter sent prior to the July 2009 initial rating, the RO notified the Veteran of the information and evidence needed to substantiate his claim for service connection and provided the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Courts have held that once service connection is granted the claim is substantiated, additional notice is not required. 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. VA also 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 remanded the Veteran's claim in April 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was to be afforded VA examination to determine the full extent of the disability arising from his testicular disorder. The April 2013 examination report prepared following the Board's instructions is complete and provides the information necessary to address the disability at issue. The RO additionally obtained an opinion in July 2013 from the Director of Compensation and Pension regarding extra-schedular entitlement. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. 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. The Board has reviewed the Veteran's statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed 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. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty 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). Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). It is possible for a Veteran to have separate and distinct manifestations from the same disability that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran contends that he is entitled to a higher initial rating for service-connected removal of the right testicle with left testicle hydrocele and impotency. Service connection was granted for this condition in the July 2009 rating based on evidence showing an atrophied right testicle and enlarged left tender testicle with history of injury following a parachute jump in service, with subsequent removal of the right testicle and varicocele and possible epididymitis on the left. He is currently assigned an initial 30 percent rating under 38 CFR 4.115(b), Diagnostic Code (DC) 7524, which is the maximum allowable rating under this particular DC. In Diagnostic Code 7524, testis removal, provides a noncompensable rating for removal of one testis, and a 30 percent rating for removal of both testes (and both ratings include footnotes to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350). 38 C.F.R. § 4.115b. The Veteran was also granted special monthly compensation based on loss of use of a creative organ, due to loss of use of a creative organ, effective from initial entitlement. See 38 U.S.C.A. § 1114(k) ; 38 C.F.R. § 3.350(a). Thus he has been afforded the maximum allowable consideration under the criteria pertaining to DC 7524 for loss of both testicles. He argues that alternate rating criteria should be considered to include based on functional loss under38 CFR 4.10, 4.40, as well as consideration of an extra-schedular rating under 38 CFR § 3.321(b). Other potentially applicable Diagnostic Codes include Diagnostic Codes 7522 which provides for a 20 percent rating when there is deformity of the penis with loss of erectile power. When the criteria for a compensable rating under a diagnostic code are not met, and the rating schedule does not provide for a zero percent rating, a zero percent rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. Thus, in the case of evaluation under Diagnostic Code 7522, when both deformity of the penis and loss of erectile power are not shown, a 0 percent rating will be assigned. Another potentially applicable DC for chronic epididymitis, Diagnostic Code 7525 provides that the disability is to be rated under the criteria for urinary tract infection. 38 C.F.R. § 4.115b. The rating criteria for urinary tract infection provides that a 10 percent rating is warranted if the condition requires long-term drug therapy, 1-2 hospitalizations per year, and/or intermittent intensive management. If the condition is manifested by recurrent symptomatic infection requiring frequent hospitalization (greater than two times/year), and/or continuous intensive management, a 30 percent rating is warranted. Higher ratings may also be assigned for poor renal function under the criteria for renal dysfunction or tubercular infections. 38 C.F.R. § 4.115a. VA treatment records pertinent to the claim include VA treatment records from 2008, with a February 2008 primary care note disclosing the Veteran complaining of having problems with erection, with none in the morning. He was assessed with status post orchiectomy after trauma. He was evaluated by urology and was assessed with erectile dysfunction. Options were discussed. He declined Levitra following a discussion of possible side effects. He continued to be assessed with erectile dysfunction in June 2008 and September 2008. In October 2008 he was referred to primary care from the emergency room (ER) for complaints of left testicular pain, with remote history of trauma resulting in right orchiectomy with prosthesis removed in 1998 due to silicone leakage. A scrotal ultrasound in September 2007 showed findings consistent with right-sided orchiectomy without evidence of soft tissue mass or testicular torsion involving residual slightly heterogeneous appearing left testicle. There was enlargement of the left epididymis with several epididymal cysts and/or left sided spermatocele with associated moderate sized left-sided varicocele and associated moderate sized left-sided hydrocele. He was scheduled for an October 2008 scrotal ultrasound which yielded an impression of status post right orchiectomy, left testicular microcalcification nonspecific-follow up clinically warranted, left epididymal head cysts versus spermatocele stable and small left hydrocele. He was referred to urology in October 2008 for further follow-up of persistent and progressive left scrotal pain with history of known epididymal cysts. The Veteran reported a difficulty with the left-sided testicle hanging long and causing some discomfort, with the ultrasound findings noting to show the findings of nonspecific microcalcifications in the left testicle along with a rather large left epididymal cyst with spermatoceles and small hydrocele. According to the Veteran, this was very bothersome and painful on occasion, with other urological evaluations having confirmed these findings. He subsequently underwent a left spermatocelectomy surgery to treat this spermatocele in November 2008, with post surgery notes describing him as doing extremely well and no longer having any pain in his scrotum. The report of a June 2009 VA examination noted the in-service injury to the testes, with subsequent removal of the right testicle with prosthesis placed in 1982, and subsequent removal after it ruptured. His left testicle was noted to have had a spermatocelectomy and hydrocelectomy done in November 2008 due to continued left testicular pain. He was noted to have no complaints when last seen by urology in March 2009. On this visit, he complained of constant testicular pain since 1964 as well as impotence. He claimed he has been impotent since age 28. He had no current treatment. His medical history was negative for urinary symptoms, renal dysfunction or renal failure. He had a history of erectile dysfunction most likely due to a psychiatric condition. He indicated that vaginal penetration was not possible and that medication of Levitra was not effective. He had an absence of ejaculation most likely due to lack of erection. Examination revealed no abdominal or flank tenderness. He had normal bladder and urethra. He had normal perianal sensation. He had a normal penis examination. He had a normal left testicle, as well as normal epididymis/spermatic cord, scrotum and seminal vesicles. His right testicle was completely atrophied. His cremerastic reflex was absent. He declined digital examination so rectal and prostate examinations were not done. Results of testing revealed urine tests were all negative. His PSA and testosterone were also in the normal range. His glucose testing was high. Following the examination, the examiner diagnosed absent right testicle and impotence. Additionally diagnosed were spermatocele and hydrocele of the left testicle status post removal. This was probably associated with the diagnosed right testicular atrophy. The general occupational effect was not addressed other than to note that he was not employed. The examiner opined that the conditions of the right testicle and impotence were as likely as not the result of his in-service parachute injury. The examiner further stated that his impotence was due to psychiatric issues from having only one testicle. VA treatment records from 2009 reveal that in September 2009 he underwent a urological consult for history of having lost his right testicle and later removal of the prosthesis due to a silicone leak. He was there for another testicular procedure with complaints of not having good erections and could not remember when he had a good one. His past medical history was negative for dysuria or gross hematuria. Examination revealed his scrotum was normal looking, with the right side having no testicle present and the left testicle was normal size (6 x 8 centimeters) and consistency. His phallus was normal. Plans were made to schedule surgery to obtain surgical prosthesis. However in October 2009 when discussing the surgery the Veteran behaved in an argumentative manner and surgery was not scheduled. In April 2010, the Veteran was seen for a urology consult with a history of his right testis having been removed after it ruptured around 1998. He was noted to have plans to replace it at the Miami VA canceled for unknown reasons and was considering having the replacement done at this facility. He had no specific urological complaints at this time. Examination revealed the left testicle was descended with a scar from a previous spermatocelectomy on left and the right hemiscrotum was empty. The diagnosis was status post removal of previously placed right testicular prosthesis, with further arrangements to be made. Subsequent records from June 2010 reveal that plans were made for the Veteran to undergo surgery to place a prosthesis, but he cancelled the procedure on the day of the surgery. The notes pertaining to this surgery revealed the Veteran to deny a history of recurrent UTI's, renal failure, hematuria or kidney stones. Later in October 2010 he was treated for possible UTI symptoms with dysuria and increased frequency of urination, but no other significant symptoms. He was assessed with a possible UTI that was treated with Cipro. Urinalysis results were normal. Also in October 2010 a history was noted of his having had a scheduled orchiectomy cancelled due to a disagreement with the surgeon over the procedure. In November 2010 he was seen by urology about the possible replacement of his prosthesis, but he continued to demand a different procedure than medically indicated. He was offered a second opinion with a December 2010 urological consult continuing to reveal continued disagreements between the Veteran and the medical personnel about the procedure to be done, so he left. His pain level was noted to be 0 during this visit. In May 2012, the Veteran was seen in the VA ER for complaints of burning on urination and increased hesitancy with onset 2 days earlier shortly after he had unprotected sex with a partner. He was tested for a sexually transmitted disease and underwent a urinalysis with a diagnosis of urethritis given. All test results were normal. Later in June 2012 he was seen again for complaints of dysuria with a history of emergency treatment with Doxycycline noted, with no improvement in symptoms and findings of clean urinalysis 9 days earlier. He denied any other symptoms and on examination he had no costovertebral angle tenderness and no bladder distention. The diagnosis was acute urethritis. He was seen a few days later in June again in the ER for persistent dysuria despite treatment with multiple antibiotics with urine culture negative. The history of traumatic orchiectomy was noted, with a history of past evaluation by urology but not since this current onset. Later in June 2012 he was noted to have a history of 3 ER visits the previous month after unprotected intercourse and complaints of dysuria, with negative test results. He nonetheless had been treated with antibiotics and felt better with no further symptoms after using amoxicillin. The impression was urethritis, resolved. The Veteran testified at his March 2013 videoconference hearing, describing the injury that led to his service-connected testicular disabilities and he said he had residual pain in the right side where the testicle was removed as well as left testicle pain rated at a 7-8 out of 10 constantly. The pain caused difficulty urinating. He reported being on medication for hormone replacement. He described being unable to have a relationship with a female. His pain affected his daily living in that it slowed him down. He had to be careful as he was unable to bend normally, but had to squat instead of bend. VA treatment records from early 2013 included a February 2013 urology consult for diagnosed solitary right testicle and spermatocele left, with the injury history resulting in this condition noted. He was now seen requesting a prosthesis for the right side, with a past history of having been seen in December 2010 for the purpose of obtaining replacement prosthesis for the right testicle; such was never done due to a dispute with the medical personnel regarding the technique to be used for such replacement. He again was noted to request this replacement be done according to his specific directions. Examination revealed a normal phallus. The scrotum was empty on the right side and on the left side a moderately sized mass above the testicle was consistent with a diagnosis of spermatocele. The impression was solitary left testicle and spermatocele. A February 2013 ultrasound of the scrotum for a mass on the left yielded an impression of cystic dilatation on the left, multiple left epididymis head/tail cysts or spermatoceles noted, which was similar to previous examinations but appeared slightly progressive. Clinical correlation was recommended. On follow-up in March 2013 the findings from the February 2013 ultrasound were discussed, with the cystic dilatation of the left testis noted. The multiple cysts in the tail of the epididymis were said to be of no clinical significance, by history they were causing no symptoms. The findings and ramifications of the small varicocele were explained to the Veteran. He was noted to not be interested in any surgery or prosthesis on the right at this point. The report of an April 2013 VA genitourinary examination noted the Veteran's history of testicular injury, with subsequent removal of the right testicle and resulting right-sided scrotal and inguinal pain. He stated the pain had become worse the past 3 years, feeling like a pulling sensation. He had to hold himself on the right. He was depressed he could not have an "appointment" with a woman. He denied having any continued medication for this condition. He reported having a voiding dysfunction with the etiology of this problem said to be due to benign prostate hypertrophy. His urinary frequency in the past 2 to 3 years was daytime voiding between 2-3 hours and nighttime voiding 3 to 4 times a night. He denied leakage or use of an appliance. Other symptoms of this voiding problem due to this prostate condition included hesitancy and slow or weak streamed, none of these markedly so. He had no history of recurrent kidney or urinary tract infections. He did report erectile dysfunction with the etiology described as secondary to his right orchiectomy residuals. He reported being unable to achieve an erection sufficient for penetration or ejaculation either with or without medication. He had no retrograde ejaculation or reproductive organ infection. He also had no history of chronic epidymitis, epidymo-orchitis or prostatitis. Examination revealed a normal penis. The right testicle was absent and the left testicle had a mass on the superior pole (spermatocele). The epididymis was absent. There was a scar that was not painful or unstable, with total area less than 39 square centimeters (6 square inches). There were no other pertinent findings. The examiner reviewed and recited findings from the February 2013 scrotal ultrasound and the October 2008 ultrasound. The functional impact from the Veteran's reproductive system conditions impacted his ability to work as he could only do sedentary work. However he was noted to also be depressed over his condition. The examiner opined that the Veteran does not have any urinary impairment related to his service-connected removal of the right testicle. He has not had any recurrent UTIs and has only had the urinary symptoms of decreased urinary stream over the past 2-3 years. Such symptoms were consistent with benign prostrate hypertrophy (BPH). He was noted to complain of urinary burning persistently over many years, treated with pyridium in the past. The examiner would have a difficult time understanding why such burning would be caused by removal of the right testicle. The Veteran described pain in the area of the right scrotum, with radiation, was worse over the past 3 years and treated with Bufferin. The Veteran described developing erectile dysfunction 3 years after his right orchiectomy, so this was very possibly related to this surgery. Regarding the depression, the examiner was not a mental health professional so was not able to opine if this was secondary to his testicular disability. Again the urinary symptoms were deemed less likely due to the right orchiectomy. Additional VA records obtained after the April 2013 VA examination addressed continued treatment for genitourinary complaints in 2013. These included repeated emergency room visits in May 2013, with triage referring him to primary care for complaints of intermittent urinary burning for years, for which he sought antibiotic treatment. His history of testicular dysfunction not otherwise specified was noted in the problem list/medical history, and the earlier findings of the left epididymal cyst were also noted. In these records, he related a history of burning symptoms since he left the military 48 years earlier and indicated that penicillin was the only thing that helped. He was noted to have had multiple normal urinalysis results and on two occasions while seeking treatment, specifically antibiotic treatment in May 2013, he left the VA medical facility without undergoing complete workup after being referred to urology. The records document that the primary care clinic stopped giving him antibiotics in May 2013 due to the lack of urinalysis findings of UTI, although he previously been given antibiotics based on clinical symptoms only. On one of the occasions in May 2013 when he left the VA facility before undergoing a complete workup, he indicated he would obtain antibiotics elsewhere. The May 2013 treatment records do not show any other significant symptoms reported other than the burning sensation in the urinary tract. He denied sexual contact as the cause of such symptoms. The complaints of urinary tract burning continued to be noted in treatment records from June 2013, when he reported these symptoms had been present for the past week, even when he did not have to use the bathroom. However he denied a history of UTIs or frequency, and urinary testing was done. In July 2013, it was noted that results of urinalysis testing were negative and that he should be contacted to ask why he was requesting antibiotics in light of such findings. He was referred to urology the same for dysuria, with the Veteran now denying having symptoms of burning on urination, but instead reported left testicular pain not improved by over-the-counter medication. He was insisting that he undergo a surgical procedure to repair the problem, with the results from the February 2013 ultrasound noted. He underwent a repeat ultrasound in July 2013, with findings of multiple epididymal head cysts, small intratesticular calcification and evidence of tubular ectasis noted. By the end of July 2013, he was noted to have a recurrent left spermatocele located in the midportion of the epididymis and a resection would risk damaging the artery supply to the testes. He understood this and agreed to wear tighter underwear. The impression was left spermatocele. Plans included returning to care in 6 weeks to again discuss a possible right-sided prosthesis. Based on a review of the evidence, the Board finds that an initial rating in excess of 30 percent plus special monthly compensation is not warranted for disability resulting from removal of the right testicle with left testicle hydrocele and impotency. As previously noted, he is in receipt of the maximum allowable rating for disability of the testicles, given a 30 percent rating based on his condition being the equivalent of removal of both testes, with special monthly compensation in effect at the highest rate assignable for loss of use of a creative organ. See 38 CFR 4.115(b), Diagnostic Code (DC) 7524. See also 38 U.S.C.A. § 1114(k) ; 38 C.F.R. § 3.350(a). Looking to other potentially applicable rating criteria, the Board notes that repeatedly the medical evidence discussed at length above, including the April 2013 VA examination, has not shown any evidence of penile deformity. Moreover, the Veteran is not service connected for any such deformity. DC 7522. The evidence likewise fails to show evidence of recurrent urinary tract infections (UTI's) warranting a compensable rating under Diagnostic Code 7525. This code provides that epididymo-orchitis is to be rated under the criteria for urinary tract infection. 38 C.F.R. § 4.115b. While the Veteran is noted to have been repeatedly treated for clinical symptoms that appeared to be UTIs, his urinalysis tests were repeatedly negative for infection and eventually medical personnel declined to further prescribe antibiotic treatment. Thus, his symptoms are not shown to resemble that of infection requiring long-term drug therapy, 1-2 hospitalizations per year, and/or intermittent intensive management as contemplated by a 10 percent rating under this criteria. Further regarding other urinary symptoms, including voiding dysfunctions such as urine leakage and urinary frequency, the Board notes that the April 2013 VA examiner provided an opinion that such symptoms are not associated with his service-connected disorder, but provided an explanation that such symptoms were the result of prostate issues. There is not shown to be medical evidence to contradict this opinion. There is also no evidence of renal dysfunction shown to be associated with this service-connected genitourinary disorder; thus diagnostic criteria pertaining to renal disorders is not for application. The Board also notes that the Veteran's scar was examined at the April 2013 examination and was not painful or unstable, with total area less than 39 square centimeters (6 square inches). Thus, a separate compensable rating under the criteria for scars is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7803, 7804 (2013). In cases such as this, where the maximum schedular evaluation has been assigned, consideration may be given to entitlement to an extra-schedular rating under 38 C.F.R. § 3.321. If an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the matter was referred to the Director of Compensation and Pension Service (C & P), and by a July 2013 decision, the Director found that an extra-schedular rating was not warranted. Because the Director has addressed the question, the Board will not review the Director's decision. This is so because the Board's jurisdiction does not extend to such a review. To explain further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed such a matter when it reviewed and affirmed the United States Court of Appeals for Veterans Claims' (Court) Thun decision. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the [C & P] Director have the authority to award an extra-schedular rating." Thun, 572 F.3d at 1370. The Federal Circuit found that, at a minimum, the ROs and the Board were intended to play some role in evaluating a claim for an extra-schedular rating. Id. However, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extra-schedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extra-schedular rating 'to accord justice.'" Id. (emphasis added). The Federal Circuit, in fact, stated that the Court held that "while the Under Secretary for Benefits and the Director of the [C & P] Service are the only individuals authorized to assign an extra-schedular rating, [ROs] and the Board of Veterans' Appeals may conduct initial screening of disability claims and may refer . . . only those claims that meet two of the three regulatory criteria for extra-schedular consideration." Thun, 572 F.3d at 1367 (citing Thun, 22 Vet. App. at 111). Lastly, the Federal Circuit stated that its interpretation did not restrict the opportunity for judicial review." If the regional office or the Board makes factual findings adverse to the claimant with regard to the extra-schedular claim, those findings will be reviewable by the Veterans Court . . . just as would be the case if those findings were made by the Under Secretary or the Director." Thun, 572 F.3d at 1371. Significantly, the Federal Circuit's Thun decision was also subsequent to the decision in Anderson v. Shinseki, 22 Vet. App. 423 (2009), where the United States Court of Appeals for Veterans Claims concluded that there was no restriction on the Board's ability to review the denial of an extra-schedular rating. The concurrence opinion in Anderson, although addressing a different aspect of the extra-schedular process, provided some insight into why the Federal Circuit's holding is the appropriate result. The concurrence noted that the delegation of authority for the Director of C & P to assign an extra-schedular rating is appropriate, given that the Director of C & P has been delegated the authority to draft the rating schedule, based on "as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations." Anderson, 22 Vet. App. at 431 (Schoelen, J., concurring) (citing 38 U.S.C. §§ 501(a), 1155; 38 C.F.R. §§ 2.6(b)(1), 3.100)." This makes the Director of C & P uniquely suited to determining what extra-schedular rating level is warranted. On the other hand, the RO and the Board have expertise in applying facts of each respective case to the rating schedule." Id. (citing Moore v. Nicholson, 21 Vet. App. 211, 218 (2007)). The role of the Board is to apply the laws and regulations to the facts of the case. See 38 U.S.C.A. § 7104 (West 2002). The provisions of 38 C.F.R. § 3.321 allow for the submission of the claim to the Director of C & P for extra-schedular consideration. The role of the Board is not to determine whether an extra-schedular rating should ultimately be assigned, but rather whether referral to the Director is required. In other words, the role of the Board is to determine whether the claim is appropriate for submission to the Director of C & P. The authority to decide whether a claimant is entitled to an extra-schedular rating is entrusted to the Director or Under Secretary, not the Board. Cf. Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (only the Secretary, and not the Court or the Board, has the authority to award equitable relief under 38 U.S.C.A. § 503(a)). In sum, with respect to the assignment of an extra-schedular rating, only the Under Secretary for Benefits and the C & P Director have been delegated the authority to award the extra-schedular rating. Thun, 572 F.3d at 1370. In the appellant's case, because the Director has decided the extra-schedular question, further analysis by the Board is not appropriate. ORDER Entitlement to a higher initial rating for removal of the right testicle with left testicle hydrocele and impotency is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs