Citation Nr: 1417783	
Decision Date: 04/21/14    Archive Date: 05/02/14

DOCKET NO.  08-11 896	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an initial compensable evaluation for recurrent left epididymitis with spermatocele.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Willie Spruill, Associate Counsel






INTRODUCTION

The Veteran served on active duty from July 1993 to July 1996, from May 2000 to September 2000, from July 2001 to May 2002, from May 2005 to November 2006, from April 2008 to August 2008, and from January 2009 to September 2009.    

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO).


FINDING OF FACT

Throughout the rating period on appeal, the Veteran's recurrent left epididymitis with spermatocele has been characterized by episodes of pain requiring long-term drug therapy.  


CONCLUSION OF LAW

The criteria for an evaluation of 10 percent, but no more, for epididymitis with spermatocele have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.115b, Diagnostic Code 7599-7525 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  

Proper notice from VA must inform the veteran 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 veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This 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).  

The RO's March 2007 and May 2008 letters to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein.  38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. 

Additionally, the May 2008 letter to the Veteran notified him that he must submit, or request that VA obtain, evidence of the worsening of his disabilities and the different types of evidence available to substantiate his claim for a higher rating.  Moreover, these letters informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment.  For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify.  See Pelegrini, 18 Vet. App. at 120. 

The duty to assist the Veteran has been satisfied in this case.  The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Specifically, in February 2012, the Board remanded this issue to the RO to obtain recent VA treatment records.  Pursuant to the February 2012 Board remand, these records were obtained and associated with the claims folder.  Accordingly, the Board finds that there has been substantial compliance with the directives of the February 2012 remand and, thus, another remand for corrective action is not warranted.  See Stegall v. West, 11 Vet. App. 268 (1998).  Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Specifically, the March 2007 examiner took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability.  Id. 

As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record.  See Pelegrini, 18 Vet. App. at 120.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). 

I. Initial Evaluation

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2013).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2013).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Service connection for recurrent left epididymitis with spermatocele was granted by a July 2007 rating decision and a noncompensable evaluation was assigned under 38 C.F.R. § 4.115b, Diagnostic Code 7599-7525, effective November 23, 2006.  The Veteran asserts that he is entitled to a compensable evaluation for recurrent left epididymitis with spermatocele.  

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27 (2013).  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition.  Id. 

Diagnostic Code 7525 directs to rate the condition as a urinary tract infection.  See 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, one to two hospitalizations per year, and/or intermittent intensive management.  A 30 percent rating is warranted when the condition is manifested by recurrent symptomatic infection requiring frequent hospitalization of greater than two times per year, and/or continuous intensive management.  Higher ratings may also be assigned for poor renal function under the criteria for renal dysfunction.  Id.

A medical report from Moncrief Army Community Hospital dated April 2006, while the Veteran was still on active duty, revealed that the Veteran was placed on restrictions, referred to an urologist, and advised to continue taking Motrin.  

In a March 2007 general VA examination report, the VA examiner indicated that a review of the Veteran's service records noted that his enlistment physical exam in November 1992 reported an incidental finding of a left varicocele, described as moderate and asymptomatic.  A profile slip dated April 2006 noted scrotal pain and a cyst epididymitis.  The treating provider advised no running, marching, sit-ups, push-ups, or jumping.  The examiner also noted that the Veteran was seen by an urologist in May 2006 for complaints of pain of the left epididymis.  His physical examination revealed a moderate left varicocele and a cystic lesion of the left epididymis consistent with a spermatocele.  Left testicle pain of unknown etiology and a left spermatocele were diagnosed and the Veteran was advised on medication.  Finally, the examiner noted that the Veteran was seen in September 2006 as a follow-up on his left testicle pain.  There was no change in diagnosis and the Veteran was given Ultram to use as needed for pain.  Finally, during the examination, the Veteran reported episodes of pain once or twice a week lasting for a short duration, with a rating of six out of ten on a pain scale.   

In an August 2007 statement, the Veteran indicated that he had a history of epididymitis since April 2006.  He indicated that his disorder caused episodes of abdominal pain, scrotal pain, and occasional swelling and tenderness in his left testicle.  In addition to these aforementioned symptoms, the Veteran also reported that he experienced increased pain when having sexual intercourse with his wife, pain when lifting objects, and pain and/or tenderness after physically exerting himself.  He was informed by his treating physician that the spermatocle in his left testicle could stay the same or become larger in size and may require surgical removal, a procedure which would leave him sterile.  Finally, he indicated that since April 2006, he had taken Motrin and Tylenol, as well as prescribed medications such as Naproxen.  

In a letter dated April 2009, Dr. J.L. stated that the Veteran had a history of a left sided spermatocele that caused scrotal discomfort.  Further, Dr. J.L. stated that the Veteran "uses Naprosyn 500 milligrams twice daily with food on a daily basis for this discomfort and will continue to do so indefinitely."  

Subsequent medical records have revealed that the Veteran continues to complain of flares of epididymitis, which causes scrotal pain, swelling, and tenderness, particularly with intercourse and when executing activities of daily living.  Further, treating providers have noted that the Veteran continues to use medication, such as Naprosyn, in order to relieve his symptoms.  

Based on the above, the Board finds that the medical evidence of record shows that the Veteran has consistently reported drug therapy and intermittent intensive management of his symptoms, to include the use of Naprosyn and Ultram upon flare-ups.  The evidence indicates that the Veteran had recurrent bouts since his original episode during service.  Additionally, the Veteran provided lay statements that he experienced flare-ups of his left epididymitis with spermatocele for which he was treated with Naprosyn, Ultram, and other medications.  The Board finds that these lay statements are competent and credible evidence as to the manifestations of the Veteran's left epididymitis with spermatocele.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Board views the facts in this case, considering the reported frequency and severity of the Veteran's epididymitis with spermatocele, more closely approximates the criteria for a 10 percent disability evaluation from November 23, 2006.  See 38 C.F.R. § 4.7 (2013).  A rating in excess of 10 percent is not for assignment as recurrent symptomatic infection requiring drainage, frequent hospitalization, and/or continuous intensive management has not been shown.  

II. Extraschedular Consideration

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the 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.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  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 Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required.  See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996) (when service- connected disability affects employment "in ways not contemplated by the rating schedule[,]" § 3.321(b)(1) is applicable).

The Board finds that the Veteran's disability picture, throughout the time period on appeal, was not so unusual or exceptional in nature as to render the rating assigned herein inadequate.  The Veteran's recurrent left epididymitis with spermatocele is evaluated pursuant to 38 C.F.R. § 4.115b, the criteria of which are found to specifically contemplate the level of disability and symptomatology for genitourinary disorders.  When comparing the Veteran's 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 disability rating assigned herein for his service connected epididymitis with spermatocele.  Ratings in excess thereof are provided for certain manifestations of the service connected disorder, but the medical evidence of record did not demonstrate that such manifestations were present in this case.  The criteria for the disability rating assigned herein more than reasonably describe the Veteran's disability level and symptomatology during the pertinent time period and, therefore, the schedular evaluation assigned herein is adequate and no referral is required.

After review of the evidence of record, there is no evidence of record that would warrant a rating lesser than or in excess of 10 percent for the Veteran's 
service-connected epididymitis with spermatocele at any time during the period pertinent to this appeal.  38 U.S.C.A. 5110 (West 2002); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999).  While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected epididymitis with spermatocele, the evidence shows no distinct periods of time since service connection became effective, during which the Veteran's epididymitis with spermatocele has varied to such an extent that a rating greater or less than 10 percent would be warranted.  Cf. 38 C.F.R. § 3.344 (2013) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations).

Accordingly, an evaluation greater than 10 percent assigned herein for the Veteran's service-connected epididymitis with spermatocele is not warranted.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against a rating in excess of the 10 percent evaluation assigned herein, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

An evaluation of 10 percent, but no more, for recurrent left epididymitis with spermatocele is granted, subject to the laws and regulations governing the payment of monetary benefits.  



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs