Citation Nr: 1617065 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 09-27 871A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial compensable disability rating for right testicle scar, residual of right hydrocele removal and orchiopexy. 2. Entitlement to a compensable disability rating prior to September 9, 2014, and in excess of 10 percent thereafter, for painful scar, right testicle. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to November 1975. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from October 2006 and July 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In February 2012, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). In May 2012, the Board issued a decision that, in part, denied the appealed claim of entitlement to an initial compensable disability rating for right testicle scar, residual of right hydrocele removal and orchiopexy. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's May 2012 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ that conducted the February 2012 hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, in November 2013, the Veteran requested to have the prior decision vacated and a new one issued in its place after a new hearing had been conducted. In June 2014, the Board vacated the portion of the May 2012 decision which denied entitlement to an initial compensable disability rating for right testicle scar, residual of right hydrocele removal and orchiopexy. In August 2014, this matter was remanded to afford the Veteran a new hearing before the Board in accordance with his request. In September 2014, the Veteran testified at a Travel Board hearing before a second VLJ. A transcript of the hearing is contained on the Virtual VA paperless claims processing system (Virtual VA). The law requires that a VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, and that the matter will be decided by a three member panel of VLJs. See 38 U.S.C.A. § 7102 (West 2014); 38 C.F.R. § 20.707 (2015). The United States Court of Appeals for Veterans Claims (Court) held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Pursuant to the Court's holding in Arneson, during the course of the September 2014 Board hearing, the Veteran's representative specifically waived the Veteran's right to a third hearing. Therefore, in accordance with Arneson, an additional hearing is not required. In November 2014, the Board granted the Veteran's claim of entitlement to service connection for right ear hearing loss disability, and remanded the Veteran's claim of entitlement to an initial compensable disability rating for right testicle scar, residual of right hydrocele removal and orchiopexy, for further development. In an October 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for a painful scar, right testicle, rated as 10 percent disabling, effective September 9, 2014. Although the Veteran did not specifically disagree with the rating or the effective date assigned, the Board finds that the rating and effective date for the painful scar of the right testicle is part and parcel of the increased rating claim for the Veteran's right testicle scar, residual of right hydrocele removal and orchiopexy. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3) (2015). Thus, this issue is identified as a separate appeal issue on the cover page of this decision. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected right testicle scar, residual of right hydrocele removal and orchiopexy, was superficial, linear, measured 5 cm. in length, 3 mm. in width, was not unstable, and did not adversely affect any function. 2. Throughout the appeal period, the Veteran reported intermittent pain going through his right testicle scar up to 4 times per month, with episodes lasting up to 30 seconds. 3. Throughout the appeal period, the Veteran did not have complete atrophy or removal of his right testis. 4. The Veteran's right testicle scar does not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for right testicle scar, residual of right hydrocele removal and orchiopexy, are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 7805 (2008). 2. The criteria for a disability rating of 10 percent, but no higher, for painful scar, right testicle from January 29, 2007 to September 8, 2014 have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 7804 (2008). 3. The criteria for a disability rating in excess of 10 percent for painful scar, right testicle from September 9, 2014 have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 7804 (2008). 4. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) any information and medical or lay evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence VA will obtain; and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided pre-adjudication VCAA notice by letter dated in April 2007. The Veteran was notified of the evidence needed to substantiate his claim of service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. In cases where a compensation award has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required, because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. 473; see also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because service connection for a right testicle scar has already been granted, VA's VCAA notice obligations with respect to that issue is fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Lay statements, VA treatment records, and identified private treatment records have been associated with the evidence of record. As part of the duty to assist, as discussed above, the Veteran was afforded a second Board hearing in September 2014, pursuant to his request. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the local decision review officer at the RO or the VLJ of the Board chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Here, at the September 2014 Travel Board hearing, the VLJ fully explained the issues on appeal. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim, as he provided testimony regarding the symptoms of his right testicular scar, any treatment for the scar, as well the effects on his occupation and daily activities. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In May 2007, the Veteran was afforded a VA examination. The May 2007 VA examiner noted the Veteran's surgery on his right testicle during his active duty service, as well as the Veteran's current complaints of intermittent, sharp pain in the scar and groin. The examiner also provided the results of her physical examination of the Veteran's right testicle scar. In the November 2014 remand, the Board instructed the AOJ to contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, and obtain any identified records. In August 2015, the AOJ sent the Veteran a letter asking him to complete an Authorization and Consent to Release Information to VA, VA Form 21-4142, so VA could obtain the Veteran's private treatment records from each private physician or hospitals with whom the Veteran discussed his right testicle scar, or who had examined and/or provided treatment for the scar. To date, no response has been received from the Veteran. The duty to assist is not a one-way street. If an appellant wishes help, he cannot passively wait in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), reconsidered, 1 Vet. App. 406 (1991) (while VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim). In the November 2014 remand, the Board then instructed the AOJ to afford the Veteran a new VA examination to determine the current severity of his right testicle scar. The Board requested the examiner specifically address the Veteran's reports of sharp pain through the scar. In September 2015, the Veteran was afforded a new VA examination regarding his right testicle scar. The September 2015 examination reports describe the right testicular symptomatology per the Veteran's report, and as observed upon examination, as well as the Veteran's reports of the effects of the scar on his occupation and daily activities. After reviewing the evidentiary record, to include the Veteran's service treatment records and his VA treatment records, the VA examiner issued an opinion in which he opined that it is at least as likely as not the Veteran's intermittent right scrotal pain has been present since his in-service surgery, and that it is related to the anatomical arrangement of his right scrotal structures related to that surgery. Based on the May 2007 and September 2015 examination reports and medical opinion, and the absence of evidence of worsening symptomatology since the most recent examination, the Board concludes the May 2007 and September 2015 examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the August 2015 letter to the Veteran, the September 2015 VA examination reports and opinion, and the subsequent readjudication of the claim in October 2015, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, with respect to the Veteran's claim, there is no additional development that needs to be undertaken or evidence that needs to be obtained. Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). On September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). The amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. As his claim for service connection was received prior to October 23, 2008, the amendments are not applicable and will not be applied in this case. In pertinent part, scars, other than head, face, or neck, that are deep or cause limited motion are rated as follows: area or areas exceeding 144 square inches (929 sq. cm.) are rated as 40 percent disabling; area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling; area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling; and area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2. Scars, other than head, face, or neck, that are superficial and that do not cause limited motion and that cover an area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 2. Scars that are superficial and unstable are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803, Note 1. Scars that are superficial and painful on examination are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Other scars are rated based upon limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). In pertinent part, under the revised regulations effective as of October 23, 2008, Diagnostic Code 7801 provides that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.), warrant a 20 percent rating; those in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), warrant a 10 percent rating. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2015). Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2015). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. For a 20 percent rating, there must be three or four scars that are unstable or painful, and for a 30 percent rating, there must be five or six scars. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015). Diagnostic Code 7805 pertains to other scars (including linear scars), and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. Under Diagnostic Code 7805, any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2015). Analysis The Board has thoroughly reviewed all the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). In the July 2007 rating decision, the RO granted service connection for right testicle scar, residual of right hydrocele removal and orchiopexy, rated as noncompensable, effective January 29, 2007. In the July 2008 notice of disagreement, the Veteran's representative expressed the Veteran's disagreement with the initial noncompensable rating assigned. See also August 2008 representative statement (clarifying the notice of disagreement). In January 2007, the Veteran stated he sought service connection for a "tender" scar. In an accompanying statement, the Veteran reported he had surgery on his right testicle during service, which caused him to have sharp pain through his groin area and scarring due to the operation. The Veteran reported sharp pains causing discomfort while he worked and at home in his daily activities, and that he would have to stop what he was doing until the pain passed. See also March 2006 Veteran statement. Upon VA examination in May 2007, the Veteran reported he would experience occasional sharp, excruciating right scar pain 2-to-3 times per month, lasting for 30 seconds. The Veteran stated he has never been able to understand what causes the sudden onset of the pain, and that the pain could occur when active or when sitting quietly, and that it was not related to clothing or pressure on the scar. The Veteran reported that when the pain would occur, he would need to stop whatever he was doing, stay still, and wait for the pain in his groin to pass. The Veteran reported working as a bus driver, and that he would need to pull the bus over and stop until the pain would pass. Upon examination, the May 2007 VA examiner reported the Veteran had a small, vertical 1.5 cm. long and 3 mm. wide scar on the medial side of the right testicle which was extremely difficult to see. The examiner stated the scar was nontender to exam, there was no adherence to the underlying tissue, and the texture of the skin was soft but slightly irregular throughout the scar's length. The scar was reported as stable, neither elevated nor depressed, and superficial. In his August 2009 substantive appeal, the Veteran continued to complain of experiencing a sharp pain in his testicle. Upon his February 2012 Travel Board hearing, the Veteran testified he experiences intermittent, very excruciating pain due to his right testicle scar, which occurs up to 2-to-3 times per month, and last up to 25 seconds. The Veteran again reported that he would have to stop whatever he was doing and take a minute to try and let the pain pass, including stopping his bus even in traffic to bear through the pain because he would just be focused on the pain immediately. The Veteran testified there was no predictability regarding what would bring the pain on, and no remedy for the pain but to wait it out. Upon his September 2014 Travel Board hearing, the Veteran testified he experiences pain in his right testicle scar itself, and that it feels like the pain shoots through the scar. The Veteran reported the pain happens independently, and is not related to something touching the scar. The Veteran again reported the pain can be so intense he has to stop whatever he is doing, to include making sure he will not pass out from the pain. The Veteran reported the scar causes him pain 3-to-4 times per month, and the duration depends, but the pain is so intense even 10 seconds feels like too much. The Veteran further testified he is not receiving treatment for the scar, and that it is pretty much stagnant, but can just be painful. Upon VA examination in September 2015, the VA examiner noted the surgery on the Veteran's right testicle during his active duty service, and diagnosed a painful surgical scar. The examiner noted the Veteran's report that since his in-service surgery, he has had intermittent pain in the right side of his scrotum, which has never gone away. The Veteran reported experiencing a sharp, excruciating pain above his right testicle which would occur 3-to-4 times per month for a duration of up to 30 seconds. Upon examination, the VA examiner reported a narrow, 5 cm. long, linear scar on the right side of the scrotum. The examiner stated the scar is not unstable. The examiner stated the Veteran's pain is perceived as within the scrotum and above the testicle, and that the Veteran reported the pain is so intense he has to stop whatever he is doing until the pain passes because he is afraid he will pass out, and that in his job as a bus driver, the Veteran has had to stop his bus, even in the middle of the street, because he cannot safely continue driving until the pain passes. The VA examiner also noted the Veteran's report that between episodes he is pain free, and that he has had normal sexual and reproductive function. The September 2015 VA examiner opined the Veteran's intermittent, severe supra-testicular right scrotal pain is related by onset to the Veteran's surgery during active duty service, because the pain began after the surgery. The examiner opined the Veteran's pain "is not associated with the external incisional scrotal scar but is more likely than not associated with the postoperative configuration of [the Veteran's] right scrotal contents, possibl[y] from intermittent torsion of the right testicle or torsion of the testicular appendix." The Veteran testified before the Board in September 2014 that he has sought VA treatment regarding the pain associated with his right testicle scar. However, the Veteran's VA treatment records, and available private treatment records, do not include any complaints, findings, or treatment related to the Veteran's scar. Under Diagnostic Code 7804, a 10 percent disability rating is warranted for a superficial scar which is painful upon examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Although the May 2007 and September 2015 VA examiners reported the Veteran's right testicle scar was not painful upon objective examination, the September 2015 VA examiner did diagnose a painful surgical scar. Under Diagnostic Code 7805, a disability rating is to be assigned based upon the limitation of function of the affected part. The Board finds the evidence of record does not indicate the Veteran's scar has limited the function of his right testicle. See September 2015 VA examination report. However, as discussed above, the Veteran has consistently reported throughout the appeal period that he experiences intermittent, intense pain through his right testicle scar up to three-to-four times per month, lasting up to 30 seconds, but that he could not identify any specific triggers for the pain. The Board notes the opinion of the September 2015 VA examiner that the Veteran's pain is related to the postoperative configuration of the Veteran's right scrotal contents, and not the incisional scar. As noted by the AOJ in the October 2015 supplemental statement of the case, the Rating Schedule only contemplates complete atrophy and removal of a testis as testicular disabilities, and these disabilities are only compensable if there is complete atrophy of both testes, or removal of both testes; complete atrophy of one testis and removal of one testis are both noncompensable. 38 C.F.R. § 4.115b, Diagnostic Code 7523, 7524 (2015). Although the September 2015 VA examiner indicated there may be some torsion of the right testicle or torsion of the testicular appendix, the evidence of record does not indicate the Veteran has experienced atrophy or loss of his right testicle. Accordingly, the Veteran does not meet the criteria for Diagnostic Codes 7523 or 7524. Under these circumstances, the Board finds it proper to grant a 10 percent disability rating for a painful right testicle scar under Diagnostic Code 7804, beginning January 29, 2007, the effective date of the grant of service connection. The Board finds a 10 percent disability rating for a painful scar more nearly approximates the Veteran's disability picture, including his consistent reports throughout the appeal period of intermittent, sharp pain which he feels goes through his right testicle scar, with episodes occurring up to 4 times per month, and lasting up to 30 seconds, and which will require him to pull his bus over during work and wait until the pain subsides before he can continue driving. Accordingly, the Board finds the totality of the evidence of record indicates the Veteran's right testicle scar more nearly approximated the criteria for a 10 percent disability rating for painful scars under Diagnostic Code 7804, beginning January 29, 2007. However, the Board finds the criteria for a disability rating in excess of 10 percent during the appeal period have not been met. First, the Board finds that Diagnostic Code 7801 is not for application, as the evidence of record does not indicate that the Veteran's right testicle scar is deep or causes limited motion. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008); see September 2015 VA examination report; May 2007 VA examination report. Next, the Board finds the Veteran does not meet the criteria for a compensable disability rating under Diagnostic Codes 7802 or 7803, as the evidence of record does not indicate the Veteran's scar is unstable, and at most the scar measures 5 cm. by 3 mm. 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7803 (2008). Further, a disability rating in excess of 10 percent is not available under these Diagnostic Codes. Id. Finally, the Board acknowledges that in the October 2015 rating decision and supplemental statement of the case, the AOJ applied the amended rating criteria to the Veteran's right testicle scar. However, the Board finds this to be a harmless error, as the same result is reached under both criteria. Under the amended rating criteria, the Veteran's disability throughout the appeal period would more nearly approximate the criteria for a 10 percent disability rating for one painful scar under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015); more than one painful or unstable scar has not been shown by the evidence of record, so the criteria for a disability rating in excess of 10 percent have not been met. Further, as the Veteran's right testicle scar is linear, both Diagnostic Codes 7801 and 7802 would not be for application. 38 C.F.R. § 4.118, Diagnostic Code 7801, 7802 (2015). Finally, the analysis under Diagnostic Code 7805, for other disabling effects of the scar, would not differ from the analysis above. Accordingly, as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds the Veteran is entitled to a 10 percent disability rating for a painful right testicle scar, but no higher, beginning January 29, 2007. Extraschedular Considerations The Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected right testicle disability. The Veteran's right testicle disability is manifested by subjective pain, and an incisional scar. The rating assigned contemplates these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 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. Notably, service connection has also been granted for bilateral hearing loss, tinnitus, and atopic eczema. Neither the Veteran nor his representative has indicated any specific service-connected disabilities which are not captured by the schedular evaluations of the Veteran's individual service-connected conditions. After applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. 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. Total Disability Based Upon Individual Unemployability Lastly, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held, in substance, that every claim for an increased evaluation includes a claim for a total disability rating based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevent him from working. As discussed above, the Veteran's recent VA treatment records indicate the Veteran was on disability leave from his job, but that such leave was related to multiple incidents the Veteran experienced at work, including an assault, and that he is currently receiving mental health treatment related to those incidents. Further, neither the Veteran nor any medical providers have indicated that the Veteran is currently unable to work due to his right testicle scar. See, e.g., September 2015 VA examination report; May 2007 VA examination report. Accordingly, the Veteran has not raised the issue of TDIU as a result of his right testicle disability, and the objective evidence does not suggest that he cannot work due to this disability; therefore, the Board concludes that the issue of TDIU has not been raised. ORDER Entitlement to a disability rating of 10 percent for painful scar, right testicle from January 29, 2007 to September 8, 2014 is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for painful scar, right testicle from September 9, 2014 is denied. Entitlement to an initial compensable disability rating for right testicle scar, residual of right hydrocele removal and orchiopexy, is denied. ___________________________ ___________________________ MICHAEL LANE ERIC S. LEBOFF Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ___________________________ S. HENEKS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs