Citation Nr: 1807081 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-12 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for service-connected left epididymal cyst. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Adam Neidenberg, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1978 to June 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2011 and February 2013 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is of record. Thereafter, the claims were remanded in December 2015. They have been returned to the Board for appellate consideration. At that time, the Board also remanded a claim of entitlement to service connection for a psychiatric disorder. However, in July 2017, the RO granted service connection for depression. Thus, this claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). In a July 2017 VA Form 9, the Veteran via his representative checked the box requesting a Board videoconference hearing. The Veteran, however, testified at a Board hearing in May 2015. A claimant is entitled to a hearing on appeal. 38 C.F.R. § 20.700(a) (2017). In certain situations, including where a case is on remand to the Board from the Court of Appeals for Veterans Claims, a VA claimant has the right to request and receive a Board hearing for the purpose of submitting additional evidence, even if he previously received a hearing before the Board at another state of the appellate proceedings. Cook v. Snyder, 28 Vet. App. 330 (2017). Here, the Veteran is requesting two hearings at the same stage of the proceedings and has not provided any reasoning for this request. Further, although a new representative is technically of record in 2016 after the 2015 hearing, it appears that the Veteran's new representative is a member of the same law firm as his previous representative. As such, the Board finds that providing the Veteran with a second Board hearing is not, at this point, required. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left epididymal cyst is shown to be productive of complaints of pain and discomfort, but not renal dysfunction, voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infections. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for the Veteran's service-connected left epididymal cyst have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.31, 4.115, Diagnostic Code 7529; 4.118, Diagnostic Code 7804, 7819 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in March 2015. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. In that regard, The Board also finds that there has been compliance with the December 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). II. Increased Rating The Veteran disagrees with the 10 percent rating initially assigned for his service-connected left epididymal cyst in the August 2011 rating decision. The rating was assigned due to urinary frequency found at that time to be attributable to the epididymal cyst. The Board will provide the factual history followed by the relevant legal principles and analysis. Factual History VA provided an examination in June 2011. The Veteran presented complaining of left testicular pain. Since his military service, the Veteran had experienced recurrent pain in his left testicle with any strenuous activity, necessitating occupational activity that did not require heavy lifting or pushing that would cause any increased strain to the groin. At times of increased strain, there was increased pain in the left testicle which would only be resolved after the Veteran essentially remained off his feet for three to five days. The Veteran told the examiner that he had not been seen for this condition since his discharge from the service. He had lived with the pain and restricted his physical activity. When having an exacerbation, the Veteran would take pain medication that had been prescribed for his back for relief. Any physical contact to the affected area also produced pain. The Veteran reported that this symptom had a negative effect upon his ability to have successful sexual activity. The examiner concluded that there was no renal dysfunction. The examiner did note that the Veteran had some postvoid dribbling. The Veteran's service-connected disorder had no adverse effect on the Veteran's ability to perform activities of daily living. Occupationally, however, the Veteran was restricted from performing activities that required lifting, pushing, or any strenuous activity. On examination, the left testicle had an unattached tender appendage that was approximately three-fourths of an inch in diameter and attached to the superior pole of the testicle. The testes were otherwise normal. In an addendum, the examiner explained that an ultrasound of the scrotum showed a slightly large left testicle with bilateral testicular microlithiasis, a left epididymal head cyst, and bilateral hydroceles and varicoceles. The varicocele on the left was slightly larger. The Veteran was diagnosed with a left epididymal head cyst, bilateral hydroceles and varicoceles, and bilateral testicular microlithiasis. August 2011 VA treatment records document an ultrasound of the scrotum that showed bilateral microcalcifications of the testes, bilateral varicoceles, and hydroceles. September 2011 VA treatment records document a CT scan with contrast of the pelvis. The images showed what may have been a slight prominence of the vessels at the base of the scrotum, suggesting mild varicoceles. Otherwise, the images were normal. In a February 2012 statement, the Veteran indicated that he had dealt with his left testicular pain for years. He was unable to alleviate the pain and soreness. Pain medication would help the symptoms for two to five hours, but then they would recur. The Veteran reported that he was unable to hold a job as a result of his testicular pain. He also reported that he would become sick as a result of his medication. In March 2012, VA received a buddy statement from DR. Having lived with the Veteran for over 20 years, she reported the same symptoms identified by the Veteran in his February 2012 statement. She also indicated that he was unable keep a job or perform any house work. She also identified his nonservice-connected back problem as something that contributed to his occupational limitations. VA provided an examination in January 2013. Then, the examiner diagnosed the Veteran with orchialgia of the left testicle, noting the past medical history of epididymitis. The Veteran described experiencing pain at the left testicle. Lifting or straining would aggravate the pain. The testicle had been very sensitive, and the Veteran had experienced difficulty with sexual intercourse as a result. He was able to have an erection, and he would be able to penetrate but for the discomfort. The examiner noted that the Veteran could have an ejaculation. The Veteran had taken various pain medications over the years, and he was currently on daily narcotics for his left testicular pain. The examiner referred to the 2012 ultrasound that showed bilateral microcalcifications in the testes, bilateral varicoceles, hydroceles, and an epididymal cyst of the left testicle. The Veteran had recently seen a urologist at the VA Medical Center, and plans had been made for a nerve block. The examiner noted that the Veteran had a voiding dysfunction. However, this symptom was as likely as not etiologically related to the Veteran's benign prostatic hyperplasia. The Veteran did not have a history of urinary tract or kidney infection. The Veteran did have erectile dysfunction that was caused by the orchialgia. Examination of the penis was normal. Examination of the testes showed tenderness to palpation. No masses were palpable, but the left testicle was slightly larger than the right. There was normal consistency. The epididymis was normal. Regarding functional impairment, the examiner indicated that lifting or straining such as pushing results in discomfort in the left testicle. The Veteran stated that he was unable to lift more than approximately 10 pounds without having discomfort. In a May 2013 statement, the Veteran reiterated that he had pain and swelling in his left testicle. He was unable to do any heavy lifting or sit or stand for long periods of time. He asserted that he had no control of his bladder and that he would wear absorbent padding for urine leakage. He would need to arise at least four to five times per night to void. His constant pain had caused a large inconvenience in his life, and he was experiencing difficulty in performing and managing daily activities. The Veteran testified at a Board hearing in March 2015. Essentially, the Veteran testified as to having a voiding dysfunction and pain in his testicle. VA provided an examination in September 2016. The Veteran described that his left epididymal head cyst had worsened in his late age. He described being in pain all the time. The Veteran did not have any renal dysfunction. The examiner noted that the Veteran did have a voiding dysfunction. However, this symptom was caused by benign prostatic hyperplasia. No examination of the penis, testes, or epididymis was conducted per the Veteran's request. The examiner noted that she had not objective evidence upon which to comment on activities and employability. No other physical findings were present. In a separate opinion, the examiner cited to her review of the Board's prior remand in noting that the Veteran's medical history. The examiner opined that the Veteran's urinary frequency and incontinence were not caused by a left epididymal cyst. Rather, the etiology was a voiding dysfunction from benign prostatic hyperplasia. Citing to the Mayo Clinic, the examiner noted that prostate gland enlargement is a common condition. This condiction can cause bothersome urinary symptoms. Untreated, prostate gland enlargement can block the flow of urine out of the bladder and cause bladder, urinary tract, or kidney problems. The prostate gland is located beneath the bladder. The urethra passes through the prostate. When the prostate enlarges, it begins to block urine flow. The examiner continued, explaining that the Veteran's symptoms and functional impairment of the service-connected spermatic cyst or epididymal cyst are pain in the testicular region, causing the Veteran to not be able to climb, run, jump, or sit and stand for long periods of time. Employment providing for these issues would be possible. The examiner noted that the Veteran had previously indicated that he would sit down and stay calm for his service-connected disorder, which contradicted his statement that he could not sit down for too long. Legal Principles and analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran's left epididymal cyst has been evaluated under DC 7599-7529, indicating that it has been rated by analogy to other genitourinary disabilities in the rating schedule. The Board notes that epididymal cyst is not a disorder which a specific diagnostic code is listed. Pursuant to 38 C.F.R. § 4.27, when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27 (2017). 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. 38 C.F.R. § 4.115b, DC 7529. Under the renal dysfunction criteria set forth in 38 C.F.R. § 4.115a, a 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. 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. For urine leakage, a 20 percent rating is assigned when the wearing of absorbent materials must be changed less than 2 times per day. For urinary frequency, a 20 percent rating is assigned with daytime voiding interval between one and two hours, or; awakening to void three to four times per night. For obstructed voiding, a 10 percent rating is assigned for obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc.; (2) Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring periodic dilatation every 2 to 3 months. The provisions of 38 C.F.R. § 4.31 (2017) provide that 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 (2017). The Board has reviewed the rating schedule and found alternate rating criteria applicable to the disability picture presented by this disability-that of benign skin neoplasm pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7819. That diagnostic code provides that the disability is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or impairment of function. Here, the Board finds, given the symptoms of pain and discomfort, the appropriate analogy in this case is to a disability such as painful scars. Accordingly, the criteria found in Diagnostic Code 7804, for unstable or painful scarring, is most applicable. That diagnostic code provides that a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent is warranted for three or four scars that are unstable or painful. After a thorough review of the record, the Board finds that an increased rating in excess of 10 percent is not warranted for any portion of the appeal. Initially, the Board notes that service connection is in effect for erectile dysfunction, and the Veteran is in receipt of Special Monthly Compensation for loss of use of a creative organ. Thus, to the extent that residuals of the epididymal cyst may result in erectile dysfunction, this facet of his disability is already compensated and not on appeal. Additionally, the Board finds that the evidence does not show that any voiding or renal dysfunction is attributable to the Veteran's service-connected disorder. Renal dysfunction was not identified in any VA examination, and it was expressly denied by VA examinations conducted in June 2011 and September 2016. Furthermore, the June 2011, January 2013, and September 2016 VA examinations variously identified urinary frequency, urinary leakage, and obstructive voiding. As noted by the Board in December 2015, the evidence was unclear whether the manifestations of the Veteran's service-connected left epididymal cyst. Clarification was sought on remand and was provided in the September 2016 VA examination. Then, the examiner opined that all symptoms of voiding dysfunction were caused by benign prostatic hyperplasia, a nonservice-connected condition. The examiner provided a thorough rationale for this opinion, supporting the opinion with a concise discussion of the nature of prostate gland enlargement and the condition's symptoms, which include bladder and voiding dysfunction. The examiner clearly opined that urinary frequency and incontinence were not caused by the Veteran's service-connected left epididymal cyst. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the reasoning for the conclusion that contributes probative value to a medical opinion). The Board accepts this opinion as the most probative evidence of record regarding whether the Veteran's voiding dysfunction is a symptom of his service-connected epididymal cyst. Therefore, symptoms of voiding dysfunction will not be considered in rating the Veteran's disorder. Thus, the only symptoms attributable to the left epididymal cyst are pain and discomfort on exertion. Based on these symptoms, an increased rating must be denied. By analogy, the Veteran's painful epididymis cyst may be rated as a scar. However, a higher 20 percent rating under Diagnostic Code 7804 is only warranted for three or four scars that are unstable or painful. The Veteran's left epididymal cyst may not be said to approximate three or four unstable or painful scars based on the evidence before the Board. The pain is limited to the cyst area, and not scattered over multiple areas. The Veteran waived a physical examination in 2016 and no such evidence is thus of record. Therefore, a rating in excess of 10 percent for service-connected left epididymal cyst is not warranted under Diagnostic Code 7804. In short, the preponderance of the evidence is against the Veteran's claim of entitlement to a disability rating in excess of 10 percent for his service-connected left epididymal cyst. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against an initial disability rating in excess of 10 percent for the service-connected left epididymal cyst. ORDER An initial disability rating in excess of 10 percent for service-connected left epididymal cyst is denied. REMAND For the Veteran's claim of entitlement to a TDIU, remand is required for referral for extraschedular consideration. The Board notes that the Veteran is not qualified on a schedular basis for this claim. 38 C.F.R. § 4.16 (a). The Veteran has stated that he is unable to work as a result of his service-connected left epididymal cyst pain and depression. The Veteran submitted an application for a TDIU in March 2012. He claimed that his left epididymal head cyst and depression prevented him from securing or following substantially gainful employment. The application documents that the Veteran last worked in April 2008. He contended that his pain prevented him from being able to work. He could not lift heavy weight, stand or sit for too long, and he indicated that his back would ache. On his application, the Veteran listed his third year of high school as his highest level of education. The Veteran's work history consists of occupations that would require manual labor. The VA examinations of record describe limitations that are most relevant to an employment setting that requires manual labor. The Veteran has consistently indicated that he is unable to work as a result of his service-connected disorders. Because he is not qualified on a schedular basis for a TDIU, consideration of his claim on an extraschedular basis is warranted. The Board may not assign an extraschedular rating in the first instance but may consider whether remand to the RO for referral to the Director of Compensation Service is warranted. 38 C.F.R. § 4.16 (b). As there is lay evidence of unemployability, the Veteran's TDIU claim must be referred for extraschedular consideration of TDIU. In doing so, the Board is cognizant of the a decision from the Social Security Administration that found that the Veteran was not unemployable as a result of disabilities that included those that are presently service-connected. However, the SSA decision did not consider the VA examinations for the left epididymal cyst that show associated physical limitations. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After reviewing the record and conducting any additional development deemed necessary, in accordance with 38 C.F.R. § 4.16 (b), refer the issue of entitlement to extraschedular TDIU to VA's Director of Compensation Service. 3. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters 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). ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs