Citation Nr: 1611786 Decision Date: 03/23/16 Archive Date: 03/29/16 DOCKET NO. 08-12 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for testicular disability status-post left hydrocelectomy and left orchiectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1989 to December 1992. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a May 2006 rating decision issued by the Regional Office (RO) that granted the Veteran a temporary total rating for convalescence following surgery from March 1, 2006 to June 30, 2006, and continued the preexisting 20 percent rating thereafter. A June 2012 rating decision granted another temporary total rating for convalescence following surgery from November 16, 2011 until December 31, 2011, and continued the 20 percent rating thereafter. The Veteran is also service connected for a scar associated with the first surgery. The rating assigned for the scar (i.e. 10%) is not on appeal before the Board. Additionally, in an October 2014 decision, the RO granted special monthly compensation to the Veteran for anatomical loss of one testicle (i.e. loss of use of a creative organ), effective November 16, 2011, the date of his left orchiectomy surgery. In a December 2015 rating decision, the RO granted service connection for erectile dysfunction, assigning a noncompensable rating effective October 31, 2015. The Veteran has also not perfected an appeal of this rating; thus, it is also not on appeal before the Board. In November 2011, July 2014 and July 2015, the case was remanded for further development. The Board apologies for the delays in the full adjudication of this case. FINDINGS OF FACT 1. The Veteran's service-connected left testicular disability has been manifested by inguinal pain and edema; stasis pigmentation, eczema, ulceration and complete atrophy of the right testicle have not been shown. 2. The Veteran's service connected right testicular disability is reasonably shown to result in severe right inguinal pain. CONCLUSIONS OF LAW The criteria for a rating in excess of 20 percent for testicular disability status-post left hydrocelectomy and left orchiectomy are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7120, 4.115b, Diagnostic Code 7523 (2015). The criteria for a separate 10 percent rating for right ilioinguinal pain associated with the service-connected left testicular disability are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8530 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, however, that staged ratings for the left testicular disability are not warranted for the left testicular disability, other than those already assigned, as the degree of impairment due to the Veteran's testicular disability has not varied significantly during the appeal period, aside from the periods of surgery with convalescence, which have already been assigned temporary total ratings. Where there is a question as to which of two evaluations apply, 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). At the outset, the Board notes that the Veteran has undergone a number of VA examinations during the appeal period and has also received periodic treatment and evaluation for his testicular disability on a VA outpatient basis. Additionally, in specific regard to surgery, the Veteran underwent left hydrocelectomy surgery in March 2006 and left orchiectomy surgery in November 2011. The Veteran's testicular disability has been rated as 20 percent disabling by analogy to Diagnostic Code 7120, which is normally applied for assigning a rating for varicose veins. Under this Code, a 20 percent disability rating is assigned for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent disability rating is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent disability rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent disability rating is assigned for massive board-like edema with constant pain at rest. Diagnostic Code 7120 has been employed because it allows for a higher level of compensation for the Veteran's testicular disability based on edema. The disability had been previously rated under Diagnostic Code 8530 for impairment of the ilio-inguinal nerve manifested by pain. However, the highest available rating under this Code is only 10 percent, so the rating by analogy to Diagnostic Code 7120 is more favorable to the Veteran. Additionally, because the Veteran is already assigned a 10 percent rating for painful scar of the left ilio-inguinal area, assigning a 10 percent rating under Code 8530 for such pain in addition to 20 percent rating by analogy to Code 7120 would amount to rating the same manifestation of his disability under different diagnostic codes, which is to be avoided. See 38 C.F.R. § 4.14, the rule against pyramiding. There is no evidence or specific allegation tending to indicate that a higher 40 percent rating is warranted under Code 7120 for the Veteran's testicular disability, as neither stasis pigmentation nor eczema has been shown. The Board has also considered whether a higher rating could be warranted based on the Veteran having had one testicle removed (i.e. the orchiectomy). However, removal of one testis when the other testis is present and functioning does not warrant a compensable rating. See 38 C.F.R. § 4.115b, Diagnostic Code 7524. The Veteran has asserted that essentially his right testicle is not functioning and thus, he should be afforded a rating based on the removal of both testicles. However, he is not shown to have complete loss of function of the right testicle, with the VA examinations, including the most recent one from October 2015, showing that he does have some retained right testicular function. Accordingly, the evidence does not provide a basis for assigning a compensable rating under Code 7524. 38 C.F.R. § 4.115b. Additionally, while some right testicular atrophy has been noted, complete right testicular atrophy has not been shown nor alleged. Consequently, there is no basis for assigning a compensable rating for such atrophy. 38 C.F.R. § 4.115b, Diagnostic Code 7523, requiring complete atrophy of both testicles in order to assign a compensable, 20 percent rating. At a September 2014 VA urology examination, the Veteran was noted to have some level of voiding dysfunction that the examiner associated with the Veteran's service-connected status post orchiectomy. However, at the subsequent October 2015 VA examination, this level of leakage was specifically evaluated and found not to require the wearing of absorbent material. Nor is there other evidence of record tending to indicate that the wearing of absorbent material is necessary due to this dysfunction. Consequently, the Board does not have a basis for awarding a compensable rating for this dysfunction. See 38 C.F.R. § 4.115a, indicating that 20 percent is the lowest rating available for voiding dysfunction and that in order for such a rating to be warranted, the wearing of absorbent materials, which must be changed less than 2 times per day is required. In a November 2014 statement, the Veteran indicated that he thought the rating schedule allowed for a 60 percent rating for "frequent urination after using the bathroom." Considered in the context of the other evidence of record, including the September 2014 VA urology examination, the Board interprets this statement as referring to the 60 percent rating that can be awarded for a very high level of urinary leakage. However, the Board should emphasize that such a rating is only assigned when the wearing of an appliance or the wearing of absorbent materials that must be changed at least 4 times a day is required. In this case, such a situation is neither shown nor alleged. 38 C.F.R. § 4.115a. The Board does not consider this statement to be an allegation of urinary frequency due to his service-connected testicular disability, nor does the medical evidence establish the presence of any significant urinary frequency. Accordingly, there is no basis for assigning a separate rating based on this symptomatology. Id. At the October 2015 VA examination, the examiner did also note that the Veteran continued to experience residual scrotal and inguinal pain that was currently present at his right side as well as the left status post simple orchiectomy. Thus, as the examiner did specifically relate this right-sided scrotal and inguinal pain to the service-connected status post left orchiectomy, this symptomatology may also be considered as service-connected. 38 C.F.R. § 3.10. Moreover, although the specific severity of this right-sided pain is unclear, resolving reasonable doubt in the Veteran's favor, the Board finds that it is compatible with severe impairment of the right ilio-inguinal nerve. Accordingly, the Board will assign a separate 10 percent rating for this impairment under Diagnostic Code 8530. A higher rating may not be assigned, as one is not available under this Diagnostic Code and the Veteran's pain is not shown to be more than severe in degree. The Veteran has also requested that the Board consider his erectile dysfunction, in considering the overall level of compensation awarded to his testicular disability. While the rating for this disability is not on appeal, the Board does want the Veteran to understand that he did not receive a compensable rating for erectile dysfunction because he is not shown to have any penile "deformity". 38 C.F.R. § 4.115b, Diagnostic Code 7522. However, he does still receive some compensation in relation to this disability in the form of the special monthly compensation he receives for loss of use of a creative organ. Consequently, as the erectile dysfunction is accounted for by the award of special monthly compensation, it does not provide a basis for assigning an increased rating for the underlying testicular disability, which is subject to this appeal. The Board empathizes with the challenges the Veteran faces in coping with an extremely challenging disability picture. However, the Board must apply the controlling law and regulations. In this case, with resolving reasonable doubt in his favor, the law will allow for an award of an additional 10 percent compensation for the Veteran's testicular disability based on the right ilioinguinal impairment but will not allow for an award in excess of this amount. This award should raise the Veteran's combined disability compensation for his testicular disability, generally, to 40% plus his special monthly compensation award. Given that this disability does not prevent the Veteran from working (indeed, the evidence indicates that he continues to work full-time), and given that the October 2015 VA examiner generally found that the disability presented overall mild to moderate impairment in his ability to work in that he has difficulty with lifting, the Board finds the overall level of compensation provided for his testicular disability is appropriate under the law. The Board has also considered whether the schedular evaluations for the Veteran's testicular disability status post left varicectomy and orchiectomy are inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In determining whether referral for extra-schedular evaluation is necessary, the Board must first consider whether there is an exceptional or unusual disability picture present, where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The schedular evaluations in this case are not inadequate. Evaluations in excess of those currently assigned are provided for certain manifestations of the service-connected disability on appeal, which have been discussed. The evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, including his symptoms of edema and pain in the right and left ilioinguinal areas and his difficulties with lifting, as the criteria assess the level of occupational impairment attributable to the Veteran's symptoms and the level of functioning. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration of the ratings assigned is not warranted. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 115. Additionally, under Johnson v. McDonald, 762 F.3d 1362 (2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms of record that have not been attributed to a specific service-connected condition. Moreover, neither the Veteran nor his representative has made any such allegation. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Johnson, 762 F.3d 1362. II. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA provided adequate notice in a letter sent to the Veteran in March 2006. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Pertinent VA treatment records are associated with the claims file and the Veteran was also provided with appropriate VA examinations, most recently in October 2015. The Veteran has also been provided ample opportunity to advance his assertions. There is no indication of additional existing evidence that is necessary for a fair adjudication of the instant claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER A rating in excess of 20 percent for testicular disability status-post left hydrocelectomy and left orchiectomy is denied. A separate 10 percent, but no higher, rating for right ilio-inguinal pain associated with status post left hydrocelectomy and left orchiectomy is granted subject to the regulations governing the payment of monetary awards. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs