Citation Nr: 18139966 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 17-20 278 DATE: October 1, 2018 ORDER Service connection for a cervical spine disability is denied. Prior to November 21, 2017, a compensable rating for residuals of a left elbow contusion is denied; from November 21, 2017, a 10 percent rating for residuals of a left elbow contusion is granted. A compensable rating for a left inguinal hernia is denied. A rating higher than 10 percent for left varicocelectomy residuals is denied. REMANDED Service connection a left shoulder disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a cervical spine disability began during active service, or is otherwise related to an in-service injury, event, or disease. 2. Prior to November 21, 2017, the Veteran’s left elbow contusion was asymptomatic; from that date, the Veteran credibly reported pain in the joint. 3. The left inguinal hernia is not manifested by any current protrusion or need for support. 4. The left varicocelectomy is manifested by subjective pain without objective residuals. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. Prior to November 21, 2017, the criteria for a compensable rating for a left elbow contusion have not been met; from that date, the criteria for a 10 percent rating have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5206. 3. The criteria for a compensable rating for a left inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7338. 4. The criteria for a rating higher than 10 percent for a left varicocelectomy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.115b, Diagnostic Code 7524. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from July 1950 to July 1953. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in November 2017. Service Connection 1. Service connection for a cervical spine disability The Veteran contends that he has a cervical spine disability associated with a fall during active service. The Board concludes that, while the Veteran has diagnoses of torticollis, cervical spondylosis, and a possible old fracture at C5, the preponderance of the evidence is against finding that these conditions began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). During his November 2017 hearing, the Veteran testified that he injured his neck after falling from a truck. While the Veteran is competent to report this injury, his reports are largely not credible due to inconsistency with other evidence in the record. Specifically, the Veteran reported that this incident is what also resulted in his service-connected left elbow contusion. Service treatment records from April 1953 show the Veteran reported having problems with his left elbow from bumping it eight months earlier. His service records also contain entries for a variety of other complaints, including a hernia, varicocele, abdominal pain, shoulder pain, appendicitis, colds, and stomach cramps. However, there are no entries for complaints, treatment or diagnoses pertaining to the neck or cervical spine, and the Veteran’s July 1953 separation examination was normal. This strongly suggests that no neck or cervical spine injury was sustained during service. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made by the Veteran to physicians for diagnosis and treatment are exceptionally trustworthy because the Veteran had a strong motive to tell the truth to receive proper care). In addition, a few years after service in April 1956, the Veteran was seen for pain in his neck and across his shoulders, but he reported only four-day history of these symptoms without reference to any injury or symptoms from service. For these reasons, the overall weight of the evidence is against a finding that that Veteran incurred a neck injury during his period of active service. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board acknowledges that the Veteran has a lengthy history of symptoms and treatment associated with his service-connected disabilities. However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Hyphenated diagnostic codes (DCs) are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using “99” for the last 2 digits. Id. Ratings by analogy are based on similar functions, anatomical location and symptomatology. 38 C.F.R. § 4.20. 2. Left elbow contusion residuals The Veteran is currently assigned a 0 percent rating for his left elbow disability under DC 5299-5206. The evidence indicates that the Veteran’s left arm is his minor arm. DC 5206 addresses limitation of flexion of the forearm. When flexion is limited to 110 degrees, a 0 percent rating is assigned. Flexion limited to 100 degrees warrants a 10 percent rating. Flexion limited to 90 degrees warrants a 20 percent rating. DC 5207 addresses limitation of extension of the forearm. It provides a 10 percent rating when extension is limited to 60 degrees and a 20 percent rating when extension is limited to 75 degrees. VA examinations from October 2014 and February 2017 both document full range of motion of 0 degrees extension to 145 degrees of flexion. No pain was present during range of motion testing and no changes were evident following repetitive testing. X-rays in October 2014 were normal, and the Veteran denied a history of any flare-ups during both examinations. These findings do not support a higher 10 percent rating under the above criteria, and the Veteran’s outpatient treatment records from the appeal period are silent regarding any left elbow symptoms or evaluations. During his November 2017 hearing, however, the Veteran reported experiencing daily pain in his elbow. Notwithstanding the denials of pain during both VA examinations and the absence of any complaints in his treatment records, the Board finds the Veteran’s statement to be generally credible given the history of elbow pain documented in his claims file prior to the current appeal period. The intent of the rating schedule is to recognize painful joint motion as productive of disability and entitled to at least the minimal compensable rating. 38 C.F.R. § 4.59. Therefore, a 10 percent rating is warranted from November 21, 2017, the date of his testimony regarding pain. During his appeal, the Veteran has related neurological symptoms in his left arm to his service-connected left elbow condition. As discussed below, however, these neurological symptoms have been diagnosed as a brachial plexus injury which has not been shown to be associated with the Veteran’s left elbow contusion residuals. 3. Left inguinal hernia The Veteran is currently assigned a 0 percent rating for his left inguinal hernia under DC 7338. Under that code, a 0 percent rating is assigned when the hernia is small and reducible, remediable, or without true protrusion. A 10 percent rating is assigned when the hernia is recurrent, readily reducible and well supported by a truss or belt. The Veteran underwent a VA examination in April 2016. No hernia was detected during the examination, and the examiner stated that there was no indication that any support was needed. There were no other signs or symptoms related to this condition. His VA outpatient records are silent regarding any left inguinal hernia symptoms or complaints. During his November 2017 hearing, his representative acknowledged a close relationship between pain symptoms of the hernia and the varicocelectomy, and this pain will be discussed below in the context of the varicocelectomy. Otherwise, the Veteran did not present any testimony to indicate that the hernia had recurred. Based on this evidence, the Board finds that the criteria for a compensable rating for the left inguinal hernia have not been met. 4. Left varicocelectomy The Veteran is currently assigned a 10 percent rating for his left varicocelectomy by analogy under DC 7599-7524. For reference, a varicocelectomy is the ligation and excision of a varicocele, which is varicosity of the veins which form a swelling in the scrotum. See Dorland’s Illustrated Medical Dictionary 2053 (31st ed. 2007). DC 7524 provides a 0 percent rating when one testis is removed and a 30 percent rating when both are removed. In addition, DC 7523 provides a 0 percent rating for complete atrophy of one testicle and a maximum 20 percent rating when there is complete atrophy in both testes. Both codes also provide that special monthly compensation for the loss of use of a creative organ may be warranted. The Board notes that the Veteran would typically only be assigned a noncompensable rating for his disability under DCs 7523 or 7524 since neither testis is atrophied or has been removed. However, he has been in receipt of a 10 percent disability rating since February 1976 for his left varicocelectomy. This rating was awarded based on objective evidence of a tender varicocele. The Board will not disturb this rating as it has been in effect for over twenty years. 38 C.F.R. § 3.951. Nevertheless, a higher rating is not warranted. VA examinations from October 2014, April 2016 and February 2017 all noted that the Veteran had no complications, residuals or symptoms associated with his varicocelectomy. He did not have any renal dysfunction or voiding dysfunction associated with his condition. His VA outpatient records are also silent regarding any varicocelectomy symptoms or complaints. The Board has also considered whether a rating by analogy under DC 7120 for varicose veins is appropriate. The criteria for a 10 percent rating under that code contemplate aching and fatigue, but higher ratings are not warranted unless manifestations such as persistent edema, stasis pigmentation or eczema are present. In sum, the currently assigned 10 percent rating adequately addresses any pain associated with the Veteran’s varicocelectomy, and a higher rating is not appropriate because no other residuals are present. Finally, the Veteran has been diagnosed with erectile dysfunction. However, the February 2017 VA examiner found that this was associated with his advanced age and loss of vascular tone and not due to his varicocelectomy. Therefore, special monthly compensation based on loss of use of a creative organ is not warranted. REASONS FOR REMAND Service connection for a left shoulder disability The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran’s current disability is related to a documented in-service injury. A June 2018 private physician diagnosed brachial plexus dysfunction. For reference, the brachial plexus is a network of lymphatic vessels, nerves or veins originating from the anterior branches of the last four cervical spine nerves and most of the anterior branch of the first thoracic spinal nerves. See Dorland’s Illustrated Medical Dictionary 1483 (31st ed. 2007). He related this condition to the Veteran’s above-noted history of falling off a truck. The Board does not find this particular incident history to be credible. However, service records do show that the Veteran sustained a left scapular contusion in July 1952 when he fell against a board one night. An examination is necessary to determine whether his brachial plexus dysfunction or any other left shoulder disability is etiologically related to that injury. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current left shoulder disability, including brachial plexus dysfunction. The examiner must opine whether it is at least as likely as not related to an in-service injury,   event, or disease, including a July 1952 left scapular contusion. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel