Citation Nr: 1514832 Decision Date: 04/07/15 Archive Date: 04/21/15 DOCKET NO. 12-27 062A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial compensable rating for service-connected right spermatocele. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the case is currently with the RO in Baltimore, Maryland. The Board notes that the noncompensable disability rating assigned to the service-connected hemorrhoids was continued by the RO in an August 2009 rating decision. The Veteran timely submitted a Notice of Disagreement and a Statement of the Case was issued in September 2012 as to the spermatocele and hemorrhoids issues. However, according to the October 2012 Form 9, the Veteran stated that he only wished to appeal the issue of entitlement to a compensable disability rating for his service-connected right spermatocele. Therefore, the claim for entitlement to a compensable disability rating for hemorrhoids is no longer on appeal and will not be addressed. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. FINDING OF FACT The Veteran's right spermatocele is shown to be productive of complaints of occasional pain, but no renal dysfunction, voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infections are shown. CONCLUSION OF LAW The criteria for an initial compensable rating for a right spermatocele are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.31, 4.155, 4.155(b), Diagnostic Codes 7599-7529 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b) (1). The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. VA must also make reasonable efforts to assist the veteran 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. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA medical records, and private treatment records as identified by the Veteran are in the file. VA treatment records have also been associated with the Veteran's electronic paperless file (Virtual VA). The Veteran has not referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The record indicates that the Veteran was afforded VA examinations in June 2008 and August 2012. The findings of the VA examiner involved review of the claims file and a thorough examination of the Veteran and the conclusions reached were supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite medical and other information necessary to make a decision on the Veteran's claim. Finally, the Veteran provided relevant testimony during a hearing before the Veterans Law Judge in September 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the Veterans Law Judge identified the issue on appeal and solicited the Veteran to identify evidence relevant to the claim, and asked questions that ensured no evidence was overlooked. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim The Veteran contends that the noncompensable rating assigned to his service-connected right spermatocele does not accurately reflect his current symptomatology. Governing rules and regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet.App. 589 (1995). 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). While the veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for any increased rating claim, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Historically, the Veteran was granted service connection for right spermatocele in a December 2008 rating decision. A 0 percent (noncompensable) rating was assigned, effective November 1, 2008. The Veteran's disability has been evaluated under Diagnostic Codes 7599-7529, indicating that it has been rated by analogy to other genitourinary disabilities in the rating schedule. Pursuant to 38 C.F.R. § 4.27, when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27 (2014). Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Code to identify the basis for the evaluation assigned. Id. Here, Diagnostic Code 7529 was used to identify the basis for the evaluation. The Veteran's disability is evaluated under Diagnostic Code 7529, for benign neoplasm of the genitourinary system, which provides that the disability is to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Under the renal dysfunction criteria set forth in 38 C.F.R. § 4.115a, a 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. Under the voiding dysfunction criteria set forth in 38 C.F.R. § 4.115a, the particular condition is to be rated as urine leakage, urinary frequency, or obstructed voiding. Only the predominant area of dysfunction is considered for rating purposes. For urine leakage, a 20 percent rating is assigned when the wearing of absorbent materials must be changed less than 2 times per day. For urinary frequency, a 20 percent rating is assigned with daytime voiding interval between one and two hours, or; awakening to void three to four times per night. For obstructed voiding, a 10 percent rating is assigned for obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc.; (2) Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring periodic dilatation every 2 to 3 months. The provisions of 38 C.F.R. § 4.31 (2014) provide that 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 evaluation are not met. 38 C.F.R. § 4.31 (2014). 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual background and analysis According to a July 2011 testicular sonogram report, the right testis was 44 mm in length, 38 mm in width, and 27 mm in height. It was normal in echotexture and vascularity. There were no testicular masses noted. A large unicameral hydrocele was noted displacing the testes medially. The hydrocele laid primary lateral and inferior to the testes. The right epididymal head was posteriorly compressed by the hydrocele and measured 17 x 9 x 4 mm. Multiple simple cysts were noted in the body of the epididymis, the largest measuring 15 mm. Overall, the size of the hydrocele was 72 x 58 x 33 mm. The Veteran was afforded a VA examination in August 2012 where the diagnoses of prostate hypertrophy; large hydrocele on the right, and bilateral epididymal cysts were confirmed. The Veteran was not on continuous medication for his diagnoses. There was no evidence of recurrent urinary tract or kidney infections and no evidence of erectile dysfunction or retrograde ejaculation. The Veteran also did not have evidence of chronic epididymitis, epididymo-orchitis, or prostatitis. The VA examiner noted the Veteran had voiding dysfunction but that it was due to the benign prostatic hyperplasia. A physical examination revealed the Veteran's penis, testes, and epididymis were normal. The Veteran's prostate, however, was abnormal as it was +2 enlarged and benign but with no nodules, tenderness, or burning in the penis with massage. The Veteran did not have a benign or malignant neoplasm or metastases related to the diagnoses. The Veteran had a large, right hydrocele measuring 13 cm, underlying anatomy not palpable because of the large hydrocele. There was no indication his condition impacted his ability to work. The Veteran testified at the September 2013 Board hearing that his right testicle is three times the size of the left. He stated it interfered with certain activities such as running, crossing his legs, clothing restrictions, and being intimate with his wife. There was also occasional pain. He stated he it was recommended by his private urologist to hold off on surgery unless it became worse. In the meantime, he just had to deal with the inconvenience. The Veteran testified he was employed with the Coast Guard and that there was no impairment in this ability to perform his job as a result of his disability. Based on a thorough review of the evidence, the Board finds that the requirements for an initial compensable disability rating have not been met. Here, the Veteran did not have symptoms that would meet or approximate a compensable rating for renal or voiding dysfunction due to his service-connected right spermatocele. 38 C.F.R. § 4.115. The Board recognizes the Veteran's contention that the right spermatocele causes occasional pain and interferes with activities such as running and intimacy with his wife. The Board further notes that voiding dysfunction was reported at the August 2012 VA examination; however, the VA examiner determined this was due to benign prostatic hyperplasia, not his service-connected right spermatocele. Inasmuch as no current ratable symptoms of his service-connected right spermatocele were identified, ratings under other potentially applicable diagnostic codes would not yield an increased or compensable rating. A higher rating is not being assigned because the Veteran does not have the functional equivalent of any of the criteria cited above. Furthermore, by his own admission, the Veteran stated the pain was occasional and there was no other identified functional impairment. Hence, the preponderance of the evidence is against a compensable rating. Id; 38 C.F.R. §§ 4.1, 4.10, 4.31. The Board noted earlier that a claimant is entitled to a staged rating for periods where a disability may manifest with greater severity than at other times. As discussed above, however, the evidence of record shows the Veteran's service-connected disability has manifested with the same severity throughout the entire rating period on appeal. Hence, there is no factual basis for an increased rating. Hart, supra. Other considerations In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's service-connected disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. There have not been any recent hospitalizations for the disability and although there may be industrial impairment, it is not beyond what is contemplated in the rating criteria. Therefore, referral for consideration of an extraschedular rating is not warranted. Lastly, he has not submitted evidence of unemployability, or claimed to be unemployable. The Veteran testified at the Board hearing that he was currently employed with the Coast Guard. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against an initial compensable rating for the service-connected right spermatocele. ORDER Entitlement to an initial compensable rating for service-connected right spermatocele is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs