Citation Nr: 1338117 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 06-08 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable disability rating for left testicular epididymitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from December 1990 to January 2003. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, inter alia, denied a compensable rating for left testicular epididymitis. The Board remanded the claim for additional development in June 2010 and September 2012. In his February 2006 Substantive Appeal, the Veteran indicated that he wanted a hearing before the Board at the RO. A hearing was scheduled for March 2010, but the Veteran did not appear and did not provide any explanation for his absence. Accordingly, his request for a hearing is considered withdrawn, and the Board may proceed with review of the claims. 38 C.F.R. § 20.704(d) (2013). FINDING OF FACT During the entire appeal period, the service-connected left testicular epididymitis was manifested by complaints of pain with some swelling, but was not manifested by any urinary tract infection symptomatology or poor renal function. CONCLUSION OF LAW The criteria for a compensable schedular rating for left testicular epididymitis, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7525-7599 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to this claim. See 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, 3.326 (2013). The duty to notify was satisfied by way of a letter sent to the Veteran in August 2010, that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Veteran was also asked to submit evidence and/or information in his possession. In this case, the RO's decision came before complete notification of the Veteran's rights. However, any defect with respect to the timing of the notice in this case was harmless error. Subsequent to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim and the Veteran had the chance to submit evidence in response to the notice letters. Under these circumstances, the Board finds that all notification and development action needed to render a fair decision on this claim has been accomplished and that adjudication of the claim, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record VA treatment records and service treatment records. There is no indication that any other treatment records exist that should be requested, or that any pertinent available evidence has not been received. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination conducted in November/December 2012 in connection with the claim adjudicated herein is more than adequate. Physical examination was conducted and the Veteran's self-reported history was recorded. The claims file was reviewed. Pertinent symptomatology, or the lack thereof, noted on examination was reported sufficient to accurately apply the criteria of the pertinent diagnostic code and evaluate the claim. For the foregoing reasons, the Board therefore finds that VA has satisfied its statutory and regulatory duty to notify and the duty to assist. See 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. §§ 3.159(b), 20.1102. II. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. III. Analysis Service connection was granted for left testicular epididymitis effective January 2003, and a noncompensable rating has been in effect since then. The Veteran's epididymitis disability has been rated by analogy under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7599-7525 (chronic epididymo-orchitis, chronic only). See 38 C.F.R. § 4.27. Diagnostic Code (DC) 7525 directs that the disability be based on the criteria for a urinary tract infection, as follows. Poor renal function is rated as renal dysfunction. A rating of 10 percent is assigned for long-term therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A rating of 30 percent is assigned for recurrent symptomatic infection requiring drainage/frequent hospitalization (more than 2 times per year) and/or requiring continuous intensive management. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2013). The record does not show, and the Veteran does not allege renal dysfunction. As such, DC 7525 directs that the disability be rated as urinary tract infection. The VA treatment record shows minimal treatment for left testicular epididymitis. In July 2005, the assessment on an outpatient progress note was epididymitis. The Veteran reported a problem with recurrent epididymitis, and had a flare up again. He was a little sore, and had some swelling near the left testicle. There was no history of injury and there were no urinary symptoms. Examination showed testes without masses. The left epididymis was indurated and mildly tender. The assessment was epididymitis. The Veteran was given Doxycycline and a plan that included local scrotal support and heat, and told to return to the clinic if symptoms persist. In the Board's September 2012 remand, it was noted that the Veteran reported, both directly and through his representative, that his epididymitis had worsened since his most recent VA examination for that disability in July 2003. The Board notes that the findings on that examination indicated that the Veteran reported that his left testicle began to hurt in 1997 and he was told he had epididymis following ultrasound. In July 2003, he reported problems urinating with a hesitant stream and intermittent testicular pain, but no impotence or history of surgery on the testicle. He reported functional impairment inasmuch as it was uncomfortable. A January 2005 report of general examination for VA conducted in December 2004 reflects a finding of genitals within normal limits. The Veteran was afforded a VA genitourinary examination in November 2012, with a reported dated in December 2012, by a VA physician who reviewed the claims folder. The diagnosis was epididymitis, chronic. The Veteran described the same history as in 2003, that he had pain in the left testicle and an ultrasound in May 1999 showed swollen left epididymis. He continued to have an aching sensation with prolonged sitting and after sexual intercourse. There were reportedly times when the testicle did not hurt but he always has a pressure sensation. He reported taking no medication for the disability, and he had never had an orchiectomy. There was no voiding dysfunction, no history of recurrent symptomatic urinary tract infection or kidney infection, no erectile dysfunction and no retrograde ejaculation. The examiner also noted that there was no history of chronic epididymitis, epidymo-orchitis or prostatitis. Physical examination revealed normal penis and testes. Epididymis was listed as abnormal, with left epididymis tender to palpation. Prostate was normal. There were no tumors related to the diagnosis. There were no scars. The examiner opined that the condition did not impact the Veteran's ability to work, and thus caused no functional impact. Having reviewed the foregoing, the Board finds that a compensable disability rating is not warranted for the Veteran's left testicular epididymitis. Here, the disability has not required long-term drug therapy. This is uncontroverted, as it is neither shown in the treatment records nor noted in the examination record. To the contrary, the most recent examination report reflects that the Veteran does not take medication for the condition. The isolated notation of one time Doxycycline in July 2005 does not constitute long-term drug therapy, particularly in the context of the otherwise negative treatment record and the Veteran's self-report of symptoms and lack of medication. Moreover, the Veteran has not undergone 1 to 2 hospitalizations per year and/or intermittent intensive management for the condition. The lack of hospitalization is uncontroverted. Furthermore, the Board does not find that the isolated notation of one time Doxycycline in July 2005 constitutes intermittent intensive management, particularly in the context of the otherwise negative treatment record and the Veteran's self-report of symptoms and lack of medication. Additionally, there has been no recurrent symptomatic infection requiring drainage nor frequent hospitalization (greater than 2 times per year) or that required continuous intensive management based on the same negative record. Thus, the criteria for a compensable rating at DC 7525 are not met. The Board has further considered whether a compensable rating is warranted under any other provision of the rating schedule, but can find no other appropriate compensable rating considering his manifestations of disability. The Board notes there is no scarring nor are there tumors. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The treatment in 2005 appears to have been an isolated occurrence as it was not repeated throughout the record. The Board has considered the doctrine of reasonable doubt in reaching this determination; however, as the preponderance of the evidence is against the assignment of a compensable rating, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the Veteran's claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's disability are contemplated by the schedular criteria. He has essentially complained of intermittent pain, swelling and discomfort in the left epididymis. If these symptoms were worse, they would likely be the types of things that would require drug therapy and more intensive management, making them contemplated by the rating schedule. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not in order. Finally, although the Veteran urges that his disability is functionally limiting, he has not submitted evidence of unemployability, or claimed to be unemployable solely due to this disability. Indeed, the most recent VA examination report includes a medical opinion essentially that the claimed disability does not have an impact on employment. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to his service-connected left testicular epididymitis has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a compensable disability rating for left testicular epididymitis is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs