Citation Nr: 18158528 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-55 634 DATE: December 17, 2018 ORDER Entitlement to service connection for a right ankle disability is granted. Entitlement to a compensable rating for a left orchiectomy is denied. Entitlement to 10 percent rating, but not greater, painful scar of the scrotum is granted. FINDINGS OF FACT 1. The Veteran has recurring right ankle pain that causes limitations with respect to prolonged standing, walking, pushing, and pulling. 2. The Veteran’s orchiectomy removed the left testes only. 3. The Veteran’s scar of the scrotum is tender and painful. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating a left orchiectomy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 7524. 3. The criteria for a 10 percent rating for a painful scrotum scar have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps November 2007 through August 2011. He was honorably discharged. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. 1. Entitlement to service connection for a right ankle disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With respect to Shedden element (1), a current diagnosis, even though a specific diagnosis may not have been provided, pain in conjunction with functional loss can constitute a disability for purposes of service connection. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, in the absence of a specific diagnosis, evidence of functional loss coupled with the Veteran’s report of pain is sufficient to show that a disability is present for purposes of service connection. The Veteran’s service treatment records (STRs) show that he was treated for severe ankle pain in April 2008. He reported spraining his ankle while weightlifting and rolling it four times. The assessment was twisted ankle. He was prescribed Ibuprofen, ankle control splints, and crutches. The Veteran continued complaining of ankle pain in May and June 2008. He was ultimately prescribed physical therapy. The Veteran underwent a VA examination in February 2011. There were no dorsiflexion, inversion or eversion deformities. Additionally, the right ankle range of motion (ROM) was normal, and the Veteran completed repetitive use testing without issue. The examiner opined the Veteran suffered from recurrent right ankle sprain that left no residual symptoms and was resolved at the time of testing. His right ankle was normal. VA medical center records in November 2014 reveal the Veteran did not exhibit ankle joint erythema, tenderness or swelling. He also exhibited full ROM and good muscle strength. The Veteran submitted Disability Benefits Questionnaire in September 2017. Reference was made to him having had a severe ankle sprain on or around February 2008. A current diagnosed disability was not identified and ROM testing was normal. However, the examiner specified that the Veteran’s right ankle pain prevented him from performing tasks requiring prolonged standing, walking, pushing and pulling. In sum, with respect to Shedden element (1), the Veteran has endorsed chronic right ankle pain and the 2017 examination has shown some loss of functionality because of his ankle pain. While this level of functional impairment may be slight, Saunders court did not hold that a specific degree of functional loss is required to establish that a disability is present. The Veteran’s ankle pain (albeit without a formal diagnosis) causes some degree of functional loss and constitutes a disability for VA compensation purposes. In addition, the record supports a finding that the Veteran’s recurrent ankle pain began in service and has continued to the present, thus establishing a causal link (nexus) between the disability and the Veteran’s service. Service treatment records (STRs) reveal treatment for an ankle strain in service. The 2017 DBQ related the Veteran’s right ankle pain to his injury in service. Accordingly, service connection for a right ankle disability (manifested by pain and functional impairment) is warranted. 2. Entitlement to a compensable for post-orchiectomy. Disability ratings are based on VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Under diagnostic code 7524 a noncompensable rating is warranted for the removal of one testis, and a 30 percent rating is warranted for the removal of both testes. An accompanying note provides that, in the case of the removal of one testis as the result of a service-incurred injury or disease, other than an undescended or congenitally undeveloped testis, with the absence or nonfunctioning of the other testis unrelated to service, an evaluation of 30 percent will be assigned for the service-connected testicular loss. 38 C.F.R. § 4.115b, Diagnostic Code 7523. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran is service connected for a left orchiectomy that removed the left testis. He has not asserted nor provided medical evidence that his right testicle is non-functioning. Service treatment records show diagnostic testing confirms the Veteran’s right testicle was normal and unremarkable. A Declaration of Status of Dependents filed in 2015 reveals the Veteran is the parent of two biological children, one of whom was conceived two years after the left orchiectomy. Such evidence belies the notion the Veteran’s right testicle is nonfunctioning. The Veteran submitted genitourinary DBQ August 2017. The examiner noted the Veteran’s left orchiectomy was caused by an injury sustained while the Veteran was completing an obstacle course. The Veteran said he continued to experience pain in the left groin and lower abdominal area. The Veteran also endorsed problems with erectile dysfunction and voiding dysfunction. None of these problems were noted to be related to the orchiectomy. The examiner did not note any negative information regarding the right testicle. During a Board hearing, the Veteran was asked to describe the disability to which he stated he felt internal and excessive pain that existed during most activities. The Board finds that the assignment of a 30 percent evaluation is not warranted because the Veteran’s right testicle is functioning and remains intact. The Veteran’s current symptoms and complaints do not meet the rating schedule’s requirements for an increase. Consideration have been given to the Veteran’s report of generalized pain in the area of the surgery – the absent left testicle. The complaints of tenderness and pain in the area of the surgery (scar) are discussed below. No other functional loss has been identified. 3. Entitlement to a compensable rating for a painful scrotum scar. Diagnostic Code 7804 pertains to unstable or painful scars. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. 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, and for a 30 percent rating, there must be five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. In November 2014 the Veteran was service connected for the scrotum scar under Diagnostic Code 7805. A January 2015 VA examination indicated the Veteran incurred one scar as a result of the orchiectomy. The examiner stated the scarring which measured 4 cmx 0.1 cm was non-painful. A September 2017 VA examination indicated the Veteran was diagnosed with one painful scar. The Veteran reported he experienced pain when walking. There is no evidence of frequent skin loss covering the scar or of any additional service-connected scars which caused pain. During a Board hearing in August 2017 the Veteran stated that his scar constantly hurt him. The Board acknowledges that the Veteran is competent to report observable symptoms such as pain. The testimony is found competent, credible and probative as to whether the Veteran experiences pain. The Board finds that an evaluation 10 percent is warranted because the Veteran has provided competent medical and lay evidence he experiences pain from his service-connected scar. The evidence does not warrant an evaluation in excess of 10 percent because the Veteran has only one scar and there is no evidence indicating that the scar is unstable. There is likewise no evidence any additional functional loss caused by the scar. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel