Citation Nr: 1751201 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-14 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an extraschedular rating for residuals, orchitis with atrophy of left testes. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1946 to May 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This matter was previously before the Board in December 2016. At the time, the Board denied a compensable schedular rating for residuals, orchitis with atrophy of left testes; granted a separate, noncompensable rating for erectile dysfunction associated with residuals, orchitis with atrophy of left testes; and remanded the claim of entitlement to an extraschedular rating for residuals, orchitis with atrophy of left testes. The Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.S. § 7107(a)(2) (LexisNexis 2017). FINDINGS OF FACT 1. The criteria for rating residuals, orchitis with atrophy of left testes do not adequately contemplate the Veteran's disability picture. 2. As a result of the residuals, orchitis with atrophy of left testes, the Veteran has a daytime voiding interval of between one and two hours, and wakes up to void approximately three times per night. 3. The voiding dysfunction associated with the residuals of the orchitis with atrophy of left testes causes marked interference with employment so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an extraschedular rating of 20 percent, but no higher, for residuals, orchitis with atrophy of left testes have been met. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.115a, Diagnostic Code (DC) 7523 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he is entitled to an extraschedular rating because the residuals of his orchitis result in symptoms not adequately contemplated by the applicable schedular rating criteria. Generally, disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C.S. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321(b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in its December 2016 remand. Pursuant to the Board's December 2016 remand, the AOJ referred the claim for an extraschedular rating to the Director for initial consideration of whether an extraschedular rating was warranted. In a December 2016 memorandum, a decision review officer (DRO) of the Appeals Management Center (AMC) recommended to the Director that an extraschedular rating be denied. In an August 2017 decision, the Director denied an extraschedular rating, and the AOJ continued the denial in a supplemental statement of the case in September 2017. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). Recently, the Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). For the following reasons, the Board finds that an extraschedular rating in this case is appropriate, contrary to the conclusion of the Director. The Veteran is in receipt of service connection for residuals, orchitis with atrophy of left testes rated noncompensable, and erectile dysfunction associated with residuals, orchitis with atrophy of left testes, rated as 0 percent disabling. There is lay and medical evidence, however, which is indicative of significant interference with employment caused by these service connected disabilities. At his October 2009 VA examination and in hearing testimony before the Board, the Veteran explained that he experiences pain of both testes when he walks or runs, and when sitting down or getting up too fast. He also has lower abdominal or pelvic pain. He reported that he experiences urinary urgency, urinary hesitancy, and a weak/intermittent stream, and that he strains to urinate. The Veteran indicated that these symptoms mildly to moderately affect his usual daily activities, including exercise, sports, recreation, travel, chores, shopping, bathing, dressing, and toileting. Although the same examiner indicated that the Veteran's disabilities did not impact his ability to work at the October 2012 VA examination, the Board notes that at the October 2009 VA examination the Veteran also reported daytime voiding frequency of one to two hours and voiding three times per night. This voiding frequency was determined to be related to the orchitis residuals. Based upon the above, it appears that the pain, urinary urgency, urinary hesitancy, and a weak/intermittent urine stream do not adversely impact the Veteran's ability to work. However, when considering the Veteran's urinary frequency, the Board finds that there is interference with employment to a degree beyond that which is contemplated by the noncompensable schedular ratings, i.e., marked interference with employment. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Thus, the Board finds that this is an exceptional case where the criteria in VA's Rating Schedule are inadequate, and an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321(b)(1). The only remaining question is what extraschedular rating should be assigned. Under 38 C.F.R. § 3.321(b)(1), the extraschedular rating must be commensurate with the average earning capacity impairment caused by the residuals, orchitis with atrophy of left testes. However, as noted by the Court, "[b]ecause the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case." Kuppamala, 27 Vet. App. 447, 454, n7 (citing Floyd v. Brown, 9 Vet. App. 88, 97 (1996)). Here, the Veteran is rated noncompensable for his residuals, orchitis with atrophy of the left testes, and rated noncompensable for his erectile dysfunction associated with residuals, orchitis with atrophy of the left testes, for a combined 0 percent rating under Diagnostic Codes 7523 and 7522, respectively. While Diagnostic Codes 7523 and 7522 do not refer the decisionmaker to consider voiding dysfunction, as required for a compensable rating under 38 C.F.R. § 4.115a, the Board finds that a 20 percent rating under 38 C.F.R. § 4.115a is nonetheless warranted by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 377 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy"). In making this finding, the Board credits the assessment of the October 2009 VA examiner that the Veteran's episodes of daytime voiding one to two hours and voiding three times per night. Although the examiner reported that the Veteran's disabilities did not impact his ability to work, the Board finds that the evidence is in equipoise on this issue, and will afford the benefit of the doubt to the Veteran. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); 38 U.S.C.S. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given that the Veteran's residuals, orchitis with atrophy of left testes, is manifested by symptoms daytime voiding every one to two hours and voiding three times per night, the Board finds that they are in a similar location and consist of similar symptomatology to voiding dysfunction. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Urinary frequency involving a daytime voiding interval between one and two hours, or; awakening to void three to four times per night, warrants a 20 percent rating. Id. Therefore, the Board finds that a 20 percent rating is warranted by analogy to 38 C.F.R. § 4.115a throughout the appeal period. 38 C.F.R. §§ 4.20. In addressing why an extraschedular rating higher than 20 percent is not warranted, the Board finds that the evidence does not support a finding that the Veteran experiences a voiding interval of less than one hour during the day, of awakening five or more times per night, the wearing of absorbent materials, or any other analogous criteria supportive of a higher rating. See 38 C.F.R. § 4.115a. As the preponderance of the above evidence reflects that an extraschedular rating higher than 20 percent is not warranted, that doctrine is not applicable in the instant appeal. See 38 U.S.C.S. § 5107(b) (LexisNexis 2017); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An extraschedular rating of 20 percent, but no higher, for service-connected residuals, orchitis with atrophy of left testes, is granted effective September 30, 2009. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs