Citation Nr: 18158079 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-41 567 DATE: December 14, 2018 ORDER An effective date prior to November 8, 2013, for the grant of service connection for chronic epididymitis is denied. An initial compensable rating since November 8, 2013, for chronic epididymitis is denied. FINDINGS OF FACT 1. In February 1971 and August 2007, VA denied service connection for epididymitis. The Veteran did not appeal and those decisions are final. 2. Entitlement to service connection for epididymitis arose in service. 3. On November 8, 2013, VA received the Veteran’s claim to reopen his claim for service connection for epididymitis. 4. After the August 2007 decision became final, no formal claim, informal claim, or other communication requesting service connection for epididymitis was received by VA until November 8, 2013. No clinical documentation was received prior to that date which could be construed as a claim to reopen. 5. Since November 8, 2013, the Veteran had right testicle pain, swelling, softness, tenderness to palpation, 3 to 4 episodes per year that required conservative home treatment, was prevented from riding a bicycle or motorcycle, was limited in the time he could spend on a treadmill or weightlifting, and had increased urinary frequency at night. He had no urinary tract infections. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date prior to November 8, 2013, for the grant of service connection for epididymitis have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400 (2014). 2. The criteria for an initial compensable rating since November 8, 2013, for chronic epididymitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.31, 4.115a, 4.115b, Diagnostic Code 7525 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from November 1961 to March 1966. 1. Entitlement to an effective date prior to November 8, 2013, for the grant of service connection for chronic epididymitis. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor. 38 U.S.C. § 5110(a) (2012). The effective date shall be the date of receipt of the Veteran’s claim or the date on which entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i) (2017). During the relevant period in this case, VA regulation provided that any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). The provisions of 38 C.F.R. § 3.157(b)(1) direct that, once a formal claim for compensation has been allowed or disallowed because the service connected disability is not compensable in degree, receipt of certain clinical documentation will be accepted as an informal claim for increased benefits or an informal claim to reopen, and the date of such record will be accepted as the date of receipt of a claim. This clinical documentation includes outpatient records, hospital records, and evidence from a private physician or a competent lay person. In February 1971 and August 2007, VA denied service connection for epididymitis. The Veteran did not appeal and those decisions are final. The Veteran did not indicate to VA that he wished to reopen his claim of service connection for epididymitis until November 8, 2013. On that date, VA received a claim for compensation, a letter from the Veteran’s private physician, and the Veteran underwent a VA examination. No formal claim, informal claim, or other communication requesting service connection was received by VA after the prior final decision until that date. No clinical documentation was received prior to that date which could be construed as a claim to reopen. In a January 2014 rating decision, the RO granted service connection and concluded that the Veteran’s epididymitis originated during service. Therefore, entitlement arose in service. The earliest date on which VA was informed that the Veteran wished to reopen his claim of entitlement to service connection was November 8, 2013. Therefore, that is the date of receipt of the claim. As the correct effective date for the grant of service connection is the date entitlement arose or the date of claim, whichever is later, the correct effective date is November 8, 2013. The appeal is denied. 2. Entitlement to an initial compensable rating since November 8, 2013, for chronic epididymitis. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where diagnostic codes refer the decisionmaker to specific areas dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction described do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a. The Veteran’s chronic epididymitis is rated according to diagnostic code 7525. This diagnostic code states to rate for urinary tract infections, unless there are tubercular infections. 38 C.F.R. § 4.115b, Diagnostic Code 7525. A urinary tract infection warrants a 10 percent rating for infection requiring long-term drug therapy, resulting in 1 to 2 hospitalizations per year, and/or requiring intermittent intensive management. A 30 percent rating is warranted for recurrent symptomatic infection requiring drainage, frequent hospitalization (greater than 2 times per year), and/or requiring continuous intensive management. For urinary tract infections involving poor renal function, the disorder should be rated as renal dysfunction. 38 C.F.R. § 4.115a. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity. In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity. 38 C.F.R. § 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. 4.31. Where, as here, the issue involves the assignment of an initial rating for a disability following the award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). A November 2013 note from the Veteran’s private physician states that the Veteran had a history of right testicle tenderness, discomfort, pain, and swelling. The report of the Veteran’s November 2013 VA examination indicates that the Veteran had recurring pain and swelling of the right testicle. He had no voiding dysfunction and no recurrent symptomatic urinary tract or kidney infections. The examiner stated that the Veteran had 3 to 4 episodes per year that required conservative home treatment. His right testicle was considerably softer than normal and was mildly enlarged. His right testicle and epididymis were tender to palpation. He was diagnosed with chronic epididymitis. In the Veteran’s July 2014 notice of disagreement (NOD), he stated that he had pain and discomfort. He reported that his symptoms caused difficulty in his two previous marriages and contributed to his divorces. He stated that he could not ride a bicycle or motorcycle and was limited in the amount of time he could use a treadmill or weightlift. In an August 2016 statement, the Veteran reported swelling and pain. He reported that he had been told heat and ice were the only treatment options unless he wanted the testicle removed. He reported that he, therefore, treated his symptoms at home. He reiterated that he could not ride a bicycle, had pain when getting out of a car, and that pain prevented sexual partners from touching his genitals. VA treatment records throughout the period on appeal are negative for complaints of increased frequency, urgency, dysuria, incontinence, kidney infections, or urinary tract infections. An August 2016 VA treatment record states that the Veteran did report increased frequency in urination at night. In a November 2018 informal hearing presentation (IHP), the Veteran indicated that he did not meet the schedular criteria for a 10 percent rating but stated that he believed a 10 percent rating was warranted based on 38 C.F.R. § 4.10 for functional impairment and based on the statements in 38 C.F.R. § 4.115a that not all symptoms were covered by the descriptions for genitourinary dysfunctions. Since November 8, 2013, the Veteran had right testicle pain, swelling, softness, tenderness to palpation, 3 to 4 episodes per year that required conservative home treatment, was prevented from riding a bicycle or motorcycle, was limited in the time he could spend on a treadmill or weightlifting, and had increased urinary frequency at night. He had no urinary tract infections. There was no evidence of tubercular infections or of poor renal function. Given these facts, the Board finds that the current noncompensable rating adequately reflects the Veteran’s symptoms during the relevant period. 38 C.F.R. § 4.7. A 10 percent rating is not warranted as the Veteran did not have any urinary tract infections which required long-term drug therapy, resulted in 1 to 2 hospitalizations per year, or required intermittent intensive management. The Veteran has indicated that he believes he is entitled to a 10 percent rating based on functional impairment. Disorders can only be rated based on the symptoms in the relevant diagnostic code(s). See Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). 38 C.F.R. § 4.10 cannot provide the basis for a 10 percent rating. See Sowers v. McDonald, 27 Vet. App. 472, 479 (2016) (rejecting the argument that 38 C.F.R. § 4.59 provided an independent basis for a disability rating and holding that the regulation had to be applied in connection with the criteria found in a particular Diagnostic Code); Thompson, 815, F.3d at 782 (“Does § 4.40 provide a basis for a rating separate from § 4.71a? The answer is no.”). Additionally, 38 C.F.R. § 4.115a is clear that where a specific diagnostic code (in this case, 7525) directs the decisionmaker to rate the disability based on a specific area of dysfunction (in this case, urinary tract infection), that is the only area of dysfunction that shall be considered for rating the disorder. 38 C.F.R. § 4.115a does indicate that the rating criteria for some disabilities may provide additional options for ratings based on symptoms not covered by the general areas of dysfunction. In those cases, the specific diagnostic codes indicate other symptoms beyond those included in the areas of dysfunction that entitle the Veteran to a specific rating. See 38 C.F.R. § 4.115b. Diagnostic code 7525, however, is clear that the disorder is to be rated according to the area of dysfunction for urinary tract infections. The only other option for rating epididymitis is if the Veteran had tubercular infections, which the Veteran did not. There is no provision in diagnostic code 7525 that allows for an increased rating based on symptoms or functional impairment other than those symptoms listed under urinary tract infection. (Continued on the next page)   As the Veteran did not have any urinary tract infections during the period on appeal, a compensable rating is not warranted and the appeal is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel