Citation Nr: 1339904 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-06 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable rating for service-connected right testicle atrophy from March 4, 1988, to January 29, 1990. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Esq. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to February 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, in November 2007 and January 2010. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The procedural history involving this service-connected disability is complex and requires discussion. The Veteran first filed a claim involving his right testicle in July 1970. Service connection for right testicle atrophy was denied in a January 1971 rating decision that the Veteran did not appeal. The Veteran attempted to reopen his claim in 1988. A July 1988 rating decision declined to reopen the claim. Although the Veteran filed a timely notice of disagreement and a statement of the case was issued by the RO, no substantive appeal was filed and the July 1988 rating decision became final. The Veteran again attempted to reopen his claim in 1990. The RO again declined to reopen the claim in an April 1990 rating decision, which the Veteran appealed. Following a November 1990 hearing at the RO on the issue, service connection for right testicle atrophy was granted in a February 1991 rating decision, which assigned a noncompensable rating effective January 29, 1990. Entitlement to special monthly compensation for loss of a creative organ was also established effective this date. The Veteran appealed the initial rating assigned and the claim was initially remanded by the Board in November 1994. During the appellate period, a 100 percent rating effective May 11, 1995, to July 1, 1995, was established pursuant to 38 C.F.R. § 4.30, as the Veteran had undergone a right orchiectomy on May 11, 1995. See September 1995 rating decision. The disability was also recharacterized as status post right orchiectomy and a 30 percent rating was assigned effective July 1, 1995. See November 1996 rating decision. When the claim was returned to the Board, two issues were included with the claim for increased rating, namely whether the Veteran was entitled to an earlier effective date for the service-connected right testicle atrophy and whether there was clear and unmistakable error (CUE) in the July 1988 rating decision that declined to reopen the claim. The Board remanded the claims in May 2000. In a May 2005 decision, the Board determined that the Veteran was not entitled to either an increased rating or an earlier effective date. The Board also determined that there had been no CUE in either the January 1971 rating decision or the July 1988 rating decision. The Veteran appealed the May 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). The appeal was limited to that portion of the Board's May 2005 decision that determined the Veteran was not entitled to an earlier effective date for the award of service connection for right testicle atrophy and loss of use of a creative organ on the basis of CUE in the July 1988 rating decision. In a January 2007 Order, the Court granted a Joint Motion for Partial Remand, and remanded the matter to the Board. In a July 2007 decision, the Board determined that the July 1988 rating decision that declined to reopen the previously denied claim for service connection for right testicle atrophy contained CUE. In the November 2007 rating decision that is the subject of the current appeal, the RO established an effective date of March 4, 1988, for both the grant of service connection for status post right orchiectomy and the grant of entitlement to special monthly compensation based on loss of use of a creative organ. The Veteran filed a notice of disagreement, asserting that he was entitled to a 20 percent rating for right testicle atrophy from March 4, 1988, to May 10, 1995. In a December 2008 letter, the RO informed him that it could not accept a notice of disagreement as the November 2007 rating decision did not address the issue of right testicle atrophy. In a subsequent January 2010 rating decision, the RO granted service connection for right testicle atrophy with a noncompensable evaluation effective March 4, 1988, to May 11, 1995. The Veteran filed a notice of disagreement concerning this rating decision and a statement of the case was issued in February 2011. This appeal ensued. The Board notes that the RO failed to correctly characterize the issue in the November 2007 rating decision that is the subject of this appeal. This is so because the original grant of service connection was for right testicle atrophy, not status post right orchiectomy. Therefore, when implementing the Board's July 2007 decision that found CUE in the July 1988 rating decision, the RO should have characterized the issue as it was prior to the recharacterization of the service-connected disability in the November 1996 rating decision. Given the foregoing, the issuance of the January 2010 rating decision granting service connection for right testicle atrophy was necessary to clarify the service-connected disabilities. As noted previously, the Veteran appealed only that portion of the Board's May 2005 decision that determined he was not entitled to an earlier effective date for the award of service connection for right testicle atrophy and loss of use of a creative organ on the basis of CUE in the July 1988 rating decision. The Joint Motion for Partial Remand specifically noted that the Veteran did not contest the Board's determination regarding entitlement to an increased rating for service-connected status post right orchiectomy and that that issue should be dismissed. The Board notes that in its May 2005 decision, although the issue was styled as entitlement to an increased rating for service-connected status post right orchiectomy, the Board considered whether the Veteran was entitled to a compensable rating for right testicle atrophy prior to when the 100 and 30 percent ratings were implemented on May 11, 1995, and July 1, 1995, respectively. In other words, the Board's analysis included whether the Veteran was entitled to a compensable rating from the date service connection for right testicle atrophy was established on January 29, 1990. Given the foregoing, and in light of the fact that the Veteran did not contest that portion of the Board's decision regarding entitlement to an increased rating, the only issue that remains before the Board for appellate review is whether the Veteran is entitled to an initial compensable rating for right testicle atrophy from the new effective date of the grant of service connection, March 4, 1988, until the earliest date considered by the Board in May 2005, which was the old effective date for the grant of service connection, January 29, 1990. The issue has been characterized accordingly on the title page. Please note 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). FINDING OF FACT There is no probative evidence that that Veteran had a nonfunctioning and/or atrophied left testicle between March 4, 1988, and January 29, 1990. CONCLUSION OF LAW The criteria for an initial compensable rating for service-connected right testicle atrophy have not been met from March 4, 1988, to January 29, 1990. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.115b, Diagnostic Code 7523 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran is disagreeing with the rating assigned after service connection has been granted and an initial disability rating and effective date have been assigned. Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has obtained service treatment records and has assisted the Veteran in obtaining evidence, to include private and VA treatment records and VA examination reports. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). As noted in the Introduction, this decision will only consider whether the Veteran is entitled to an initial compensable rating for service-connected right testicle atrophy from March 4, 1988, to January 29, 1990. Service connection for right testicle atrophy is evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7523. Under this diagnostic criterion, a noncompensable rating is assigned for complete atrophy of one testis and a 20 percent rating is assigned for complete atrophy of both testes. Atrophy is defined as a wasting away; a diminution in the size of a cell, tissue, organ or part. See Dorland's Illustrated Medical Dictionary 157 (28th ed. 1994). The crux of the Veteran's claim is that he suffered from both right testicle atrophy and a nonfunctional left testicle prior to his right orchiectomy in May 1995. He asserts that Diagnostic Code 7523 contemplates the assignment of a 20 percent rating where the Veteran suffers from atrophy of both testicles, that he had a nonfunctioning left testicle, and that there is nothing in the applicable rating schedule that prevents the assignment of a 20 percent rating in the event that only one testicular disability is service-connected. The Veteran contends that his situation is analogous to a "paired organ" situation as provided by 38 C.F.R. § 3.383(a) due to the fact that the testicles are described as "creative organs" under the provisions of 38 C.F.R. § 3.350(a)(1). See notices of disagreement dated April 2008 and May 2010; see also In Lieu of VA Form 9. There is no question that the Veteran had an atrophied right testicle between March 4, 1988, and January 29, 1990. The Board acknowledges that the January 2010 rating decision noted that the Veteran's left testicle was nonfunctioning. The evidence of record dated between March 4, 1988, and January 29, 1990, however, does not support this finding. This is so because while a December 1970 notation indicated that a December 1970 semen analysis showed no sperm at all, two possibilities for this occurrence were noted to exist, namely 1) failure of the left testicle to form sperm and 2) obstruction to the seminal passage in the ves[icle] or epididymis. There was further notation that these causes would be differentiated by a testicular biopsy, which would be done as an inpatient. See November 1970 VA examination report. The evidence indicates, however, that the Veteran declined to undergo the biopsy. See March 1988 RO letter. Therefore, there is no conclusive evidence that the left testicle was the cause of the Veteran's infertility, as its nonfunctionality was not the only possibility that existed for his infertility. The Board finds the December 1970 notation on the November 1970 VA examination report more probative than the Veteran's assertions that his left testicle was nonfunctioning. Even if the evidence were to show that the Veteran's left testicle was nonfunctioning during the timeframe in question, the language of Diagnostic Code 7523 is clear and unambiguous: a compensable, 20 percent evaluation can only be assigned when there is complete atrophy of both testes, meaning an actual wasting away or diminution in the size of the two testicles. The Veteran has never asserted that his left testicle was atrophied and the clinical evidence clearly demonstrates that the Veteran's testicular disability does not meet these criteria. See e.g., April 1988 letter from Dr. J.M.P. (on physical examination he was noticed to have an atrophic right testicle with compensatory hypertrophy of the left testicle) (emphasis added). Furthermore, the Veteran has already been duly compensated by VA for his atrophic right testicle with no evidence of spermatozoa by the award of special monthly compensation for loss of use of creative organ under 38 U.S.C.A. § 1114(k) (West 2002) and 38 C.F.R. § 3.350(a). See February 1991 rating decision; see also November 2007 and January 2010 rating decisions. The Veteran has indicated that he is satisfied with the issue of special monthly compensation based upon the loss of use of a creative organ. See April 2008 notice of disagreement. Extraschedular consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected right testicle atrophy disability picture is not so unusual or exceptional in nature as to render the noncompensable (0 percent) rating assigned between March 4, 1988, and January 29, 1990, inadequate during the period on appeal. The Veteran's service-connected right testicle atrophy disability is evaluated under the criteria for complete atrophy of the testis under the schedule for rating the genitourinary system, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology. 38 C.F.R. § 4.115b. The Veteran's disability is manifested by subjective and objective evidence of right testicular atrophy. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 0 percent disability rating assigned between March 4, 1988, and January 29, 1990. Compensable ratings are provided for certain manifestations of testicular atrophy, but the medical evidence of record did not demonstrate that such manifestations were present in this case. The criteria for the 0 percent disability rating assigned between March 4, 1988, and January 29, 1990, more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. ORDER An initial compensable rating for service-connected right testicle atrophy from March 4, 1988, to January 29, 1990, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs