Citation Nr: 1754047 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-34 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a right epididymitis and cystoceles of right testicle, status post-testicular torsion with orchiopexy (collectively referred to as right testicle disability). 2. Entitlement to service connection for a psychiatric disorder, to include depression, major depressive disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia Department of Veteran Services WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1986, February 1991 to June 1991, October 1991 to April 1992, and April 1992 to June 2004. The Board notes that the Veteran received a bad conduct discharge for his final period of service. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2009 rating decision, the RO denied the Veteran's claim for a rating higher than 10 percent for right testicle disability. In an April 2010 rating decision, the RO denied the Veteran's service connection claims for depression and PTSD, as well as for hearing loss. The Veteran timely appealed both decisions. The Veteran, however, indicated in his substantive appeal that he did not wish to pursue the appeal for the issue of service connection for hearing loss. Thus, this issue is not before the Board. The Board notes that the RO has characterized the Veteran's claims for depression and PTSD as two separate claims for psychiatric disorders. Rather, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, the record reflects the Veteran has an additional diagnosis of major depressive disorder. As such, the issues have been condensed into a single issue and recharacterized to consider the Veteran's symptoms as a single claim, as captioned above. In September 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge in Washington DC. A transcript of the hearing is on file. The issue of service connection for erectile dysfunction has been raised by the record in his September 2017 testimony before the Board. The Veteran has also submitted a medical letter in April 2016 and again in September 2017 with a waiver of initial RO review, which is related to his already service-connected ilioinguinal neuralgia associated with his right testicle disability, however, this disability is not currently on appeal before the Board, and raises the issue of an increased rating for this disability. As these issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over these claims, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The Board's decision addressing the Veteran's claim for an increased rating for his right testicle disability is set forth below. The matter of entitlement to service connection for a psychiatric disorder is addressed in REMAND portion of the decision below; this matter is being remanded to the AOJ. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. From December 12, 2008, to August 19, 2013, the Veteran's right testicle disability has manifested by increased urinary frequency with daytime voiding interval between two and three hours, or; awakening to void two times per night. 2. From August 20, 2013, to February 11, 2016, the Veteran's right testicle disability has manifested by increased urinary frequency with awakening to void 5 or more times per night. 3. From February 12, 2016, onwards, the Veteran's right testicle disability has manifested by increased urinary frequency with daytime voiding interval between one and two hours, or; awakening to void three to four times per night. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent rating, from December 12, 2008, to August 19, 2013, for the Veteran's right testicle disability, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes, 7525, 7529 (2017). 2. The criteria for a 40 percent rating, but no more, for the period from August 20, 2013, to, February 11, 2016, for the Veteran's right testicle disability, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes, 7525, 7529. 3. The criteria for a 20 percent rating, but no more, from February 12, 2016, onwards, for the Veteran's right testicle disability, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes, 7525, 7529. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§5103, 5103A and 38 C.F.R. § 3.159. Here, the duty to notify was satisfied by way of a letters sent in May 2009. VA also 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. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, service treatment records, VA examination reports, military personnel records, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). VA provided adequate examinations. As discussed above, the Board finds that the VA medical examinations obtained in this case are adequate, as they are predicated on a full examination of the Veteran. The examiners considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided all necessary findings as well as a complete rationale for the opinions stated, relying on the evidence reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination regarding the issue on appeal has been met 38 C.F.R. § 3.159 (c)(4). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran filed his claim for a higher rating for right testicle disability on December 12, 2008. This disability is currently rated under Diagnostic Code 7525-7529. See 38 C.F.R. § 4.115b, DC 7525 (addressing chronic epididymo-orchitis). 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. Disabilities characterized under this DC 7525 are rated the same as a urinary tract infection which, under 38 C.F.R. § 4.115a, allows for a 10 percent rating when the evidence shows long-term drug therapy, 1 to 2 hospitalizations per year and/or "intermittent intensive management." 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. Here, based on the Veteran's reports and the evidence of record, the predominant area of dysfunction is urinary frequency. For urinary frequency, a 10 percent evaluation is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night warrants and a 40 percent rating is warranted for daytime voiding interval less than one hour, or; awakening to void five or more times per night. Id. For the period from December 12, 2008, to August 20, 2013, the Board determines that a rating in excess of 10 percent is not warranted. Specifically, the August 2009 examiner indicated the Veteran urinates 7 times at intervals of 3 hours and during the night he urinates once at intervals of 4 hours. The Veteran reported testicular pain and denied any overall functional impairment from this condition. The February 2012 VA examiner found no voiding dysfunction or urinary tract infections caused by his right testicle disability. During this time period, the Veteran had not reported symptoms regarding urinary frequency that warrant a disability rating in excess of 10 percent. The evidence of record does not demonstrate, and the Veteran has not reported, urinary frequency of daytime voiding interval between one and two hours or awakening to void three to four times per night during this period. Thus, the above evidence reflects the Veteran's urinary frequency caused by his service-connected right testicle disability is best characterized by the 10 percent disability rating assigned for the period from December 12, 2008, to August 19, 2013. For the period from August 20, 2013, to February 11, 2016, the Board will increase the Veteran's rating to 40 percent. In this regard, the Board notes an August 2013 VA treatment record reflects the Veteran reported worsening of his urinary frequency with nocturia of 4 to 5 times and urinary frequency of 5 to 6 times during the day. November 2013 and January 2014 VA treatment record notes urinary frequency with nocturia of 6 times and 5 to 6 times during the day. Although the records do not indicate the time interval of his daytime voiding, the Veteran's nocturia of 4 to 6 times a night during this time period warrants the maximum 40 percent rating under the criteria for urinary frequency for this time period. From February 12, 2016, onwards, the Board will also increase the rating from 10 percent to 20 percent from that date forward, as the February 2016 VA examiner indicated the Veteran's voiding dysfunction resulted in urinary frequency causing daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times. Consistent with the examiner's finding, in the September 2017 Board hearing, the Veteran reported that he voided 3 to 4 times at night. In light of the above, a 20 percent rating is appropriate from that date. The Board has also considered the application of other diagnostic codes and finds that the clinical evidence of record does not show symptoms or diagnoses that would warrant a separate or higher rating under any other diagnostic code. In that regard, the Board notes the January 2012 VA examination report notes a small well- healed torsion scar lateral on the right testicle of 2.2 cm x 0.2 cm and the examiner indicated the scar was not painful and/or unstable, and observed that it did not have a total area of greater than 39 square cm (6 square inches). Accordingly, a separate compensable rating for the scar is not warranted. The Board also notes that the Veteran has reported pain in his right testicle, which in turn causes difficulty with standing, sitting, and walking, however, the Veteran has filed a separate claim for service connection for ilioinguinal nerve associated with his right testicle disability, which the RO granted in a January 2016 rating decision. Therefore, the neurological symptoms, to include pain, are already contemplated by the rating assigned for this disability, and the propriety of the rating is not currently before the Board for consideration. Moreover, while the Veteran has claimed that he has impotence due to his right testicle disability, this disability has not been shown to be proximately related to his service-connected right testicle disability, as indicated in the January 2012 and February 2016 VA examination reports. Additionally, the Veteran has not been shown to have any renal dysfunction or voiding dysfunction that causes urine leakage, or obstructed voiding due to his service connected right testicle disability. As such, an increased disability rating based on another diagnostic code is not warranted. In considering the appropriate ratings, the Board has also considered the Veteran's statements that his disabilities are worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report his symptoms, as this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability for his disorder according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical examiners who have examined the Veteran and who have rendered pertinent medical opinions in conjunction with their evaluations. The findings of these examiners (as provided in the examination reports and post-service medical records) directly address the criteria under which the Veteran's disorder has been evaluated. Consequently, while the Board notes the Veteran's statements regarding his disability symptoms are credible, they are nevertheless outweighed by the objective medical evidence of record. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In summary, the Board finds a rating in excess of 10 percent for the Veteran's right testicle disability is not warranted for the period from December12, 2008, to August 19, 2013. Hence, the benefit-of-the-doubt rule is not for application, and the benefit sought on appeal is denied as to this period. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Board further concludes that a 40 percent rating, but no more, is warranted from August 20, 2013, to February 11, 2016, and a 20 percent rating, but no more, is warranted from February 12, 2016, onwards. The appeal is granted to this extent. The Board additionally finds that consideration for an extraschedular evaluation, a component of the Veteran's claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the In this case, the evidence does not indicate that the Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal, to include his stated symptoms and limitations with respect to his daily life, and concludes that there are no symptoms that were not able to be addressed by the applicable Diagnostic Codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. Here, the record does not suggest, and the Veteran does not specifically allege, that his service-connected right testicle disability rendered him unemployable. Therefore, Rice is inapplicable in this case. ORDER A disability rating in excess of a 10 percent rating, for service-connected right testicle disability, from December 12, 2008, to August 19, 2013, is denied. A 40 percent disability rating, but no more, for service-connected right testicle disability, from August 20, 2013, to February 11, 2016, is granted, subject to the applicable criteria governing the payment of monetary benefits. A 20 percent disability rating, but no more, for service-connected right testicle disability, from February 12, 2016, onwards, is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND The Veteran has asserted that his psychiatric disorder is related to active duty service. However, further development is required before this claim may be adjudicated. The Veteran reports that he experiences depression as a result of his period of active service, to include witnessing the death of a fellow serviceman in Twenty-nine Palms, California during a live fire exercise and escorting a fallen serviceman's body to Chicago, following the Beirut incident, both having occurred in the 1980s. Additionally, VA treatment records show that the Veteran has been diagnosed with posttraumatic stress disorder (PTSD), major depressive disorder, and depression. As indicated above, the Court has held that when a Veteran claims service connection he is not claiming service connection for a specific diagnosis, but for his symptoms regardless of the diagnosis; and the claim encompasses the underlying condition, regardless of diagnosis. See Clemons, 23 Vet. App. at 4-6. In light of the foregoing, the Veteran should be scheduled for a VA mental disorders examination so as to determine the precise nature and etiology of his asserted psychiatric disorders. In addition, the Board notes that a January 2012 response from the Joint Services Records and Research Center (JSRRC) indicated the Veteran's alleged stressor event that he escorted a fallen serviceman's body to Chicago, following the Beirut incident, could not be corroborated as the Veteran was in Norfolk, Virginia at the time of the incident. With regard to the second incident involving the witnessing of the death of the serviceman in Twenty-nine Palms, California, as the specific stressor information provided by the Veteran in this case, as well as the approximate time frame given for these events, have not yet been verified by the JSRRC, the Board finds that upon remand, the AOJ must contact the JSRRC and any other appropriate entity to attempt to verify the Veteran's reported stressor. Notably, a military personnel record reflects the Veteran was in Twenty-nine Palms, California in 1987. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. The Veteran may submit medical records directly to VA. All records obtained must be associated with the Veteran's claims file. 2. Undertake appropriate action, to include contact with the JSRRC (and other appropriate source(s)), to attempt to independently verify the occurrence of the Veteran's alleged stressful experience, to specifically include having witnessed the death of a fellow serviceman in Twenty-nine Palms, California during a live fire exercise in the 1980s. Notably, a military personnel record reflects the Veteran was in Twenty-nine Palms, California in 1987. 3. The AOJ shall schedule the Veteran for a VA mental disorders examination by an appropriate physician so as to determine the nature and etiology of any psychiatric disorder, to include depression, major depressive disorder, and PTSD, found on examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with conducting the examination of the Veteran. All testing deemed necessary shall be undertaken. The examiner is directed to answer all of the following questions as definitively as possible: (a) Is it at least as likely as not that the Veteran meets the criteria for a diagnosis of PTSD. If not, the examiner should specify which of the criteria are not met. If the Veteran does meet the PTSD criteria, the examiner shall specify the stressors supporting the diagnosis. If the diagnosis of PTSD is based upon a stressor involving fear of hostile military or terrorist activity (means that the Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror), the examiner shall so state. (b) Is it at least as likely as not that the Veteran has a diagnosis of a psychiatric disorder other than PTSD, to include depression and major depressive disorder (as noted in the VA treatment records)? (c) If the Veteran does have a diagnosis of a psychiatric disorder, is it at least as likely as not that such had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? In addressing the above, the physician must consider and discuss all relevant in service medical evidence, to include the Veteran's report of depressed mood in the June 1998 separation examination. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. If necessary, the examiner shall attempt to reconcile the opinion with any other medical opinions of record. All opinions expressed must be accompanied by a complete rationale. 4. Following any additional indicated development, the AOJ should review the claims file and adjudicate the Veteran's claim for service connection an acquired psychiatric disorder. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Department of Veterans Affairs