Citation Nr: 1807969 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 10-27 459 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable rating for residuals of an orchiopexy for spermatic cord torsion of the right testicle. REPRESENTATION Appellant represented by: Jim Comerford, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1985to September 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2014 decision of the Chicago, Illinois, Regional Office (RO). In July 2016, the Board remanded the appeal to the RO for a hearing. Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review. In April 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. In October 2015, the United States Court for Veterans Claims (Court) issued a memorandum decision with regard to the issue of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for additional cervical spine disability. In July 2016, the Board remanded the issue to the RO for additional development. Recent updates by the RO show that development is ongoing, therefore, the Board will not adjudicate that issue at this time. The Board also notes that the Veteran wishes to have a Board hearing regarding his cervical spine 1151 claim. FINDING OF FACT During the period on appeal, the Veteran's residuals of an orchiopexy for spermatic cord torsion of the right testicle has been characterized by no more than the loss of use and function of both testis since May 2011. CONCLUSION OF LAW The criteria for a rating of 30 percent, since May 26, 2011 for removal of both testis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7524 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION 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.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Diagnostic Code 7524 provides for a noncompensable disability rating for removal of one testis and a 30 percent disability rating for removal of both testes. An accompanying note indicates that in cases 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. Testis, undescended, or congenitally undeveloped is not a ratable disability. 38 C.F.R. § 4.115b, Diagnostic Code 7524. Where there is a question as to which of two disability evaluations should 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 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 the Veteran's May 2017 post-hearing memorandum he indicated that his left testicle was removed prior to service at the age of 10. The Veteran reported that he experienced repeated torsion of his right testicle as a result of service. In 1998, the Veteran had surgery to affix his testicle to his scrotum to prevent further torsion. In 2011, the Veteran's right testicle was examined and the clinician noted the testicle had no vascular flow and had no significant testicular function. In April 2016, the Veteran's right testicle was surgically removed. The Veteran asserted that the removal of his left testicle in childhood and the non-functioning of his right testicle since May 2011 is tantamount to the removal of both testicles, beginning in May 2011. Medical records submitted by the Veteran along with his May 2017 post-hearing memorandum are consistent with his testimony. A May 2011 medical record notes an exploratory operation due to a lack of blood flow. Some repair was completed which appeared to temporarily increase blood flow. An April 2016 private treatment note, also submitted with the Veteran's post-hearing memorandum, indicates the Veteran's testicle had calcified and was surgically removed. During the period on appeal the Veteran's right testicle cord torsion has been characterized by the loss of use and function of both testis since May 2011. Given the facts and consistent with the benefit-of-the-doubt doctrine, the Board finds that a 30 percent rating under Diagnostic Code 7524 for the removal of both testis is warranted. The note accompanying Diagnostic Code 7524 states "...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..." A 30 percent rating under Diagnostic Code 7524 is the maximum rating available. ORDER A rating of 30 percent for residuals of an orchiopexy for spermatic cord torsion of the right testicle since May 26, 2011, is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs