Citation Nr: 1817202	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO.  11-24 151	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an increased rating for status post left spermatocelectomy with epididymitis, currently evaluated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Barone, Counsel



INTRODUCTION

The Veteran served on active duty from June 1999 to August 2002.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

In April 2013, the Veteran was scheduled for a hearing at the RO before the Board; however, the record reflects that he did not appear for the scheduled hearing, nor did he provide any reason for his failure to attend or request that the hearing be rescheduled.  Accordingly, the request for a hearing is considered withdrawn.  38 C.F.R. § 20.704(d).

In August 2014 and April 2017, the Board remanded the appeal for development of the record.


FINDING OF FACT

Status post left spermatocelectomy with epididymitis is manifested by testicular pain and a painful surgical scar measuring 2 cm by .25 cm; there is no evidence of voiding or renal dysfunction, or of urinary tract infection.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for status post left spermatocelectomy with epididymitis have not been met.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.115a, Diagnostic Codes 7525, 7529; § 4.118, Diagnostic Codes 7804, 7805 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).  

The Veteran was notified of the evidence necessary to support his claim in correspondence dated in January 2010.  This correspondence notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified his duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding the VCAA.

The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The Veteran was provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  

With respect to VA's duty to assist, private, service, and VA treatment records have been associated with the electronic claims file.  Relevant VA examinations have been conducted, and the Board finds that when viewed in conjunction with the other medical evidence of record, there is adequate information to fairly address the severity of the disability.  

The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate his claims.  The Board is also unaware of any such outstanding evidence or information.  For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.


Analysis

Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment.  38 U.S.C.A. § 1155.  A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work.  38 C.F.R. § 4.2.

Where entitlement to compensation has already been established and an increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).   Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.  Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. §4.7. 

The Veteran's status post left spermatocelectomy with epididymitis is evaluated as 10 percent disabling pursuant to Diagnostic Code (DC) 7599-7804, for painful scars.  Regulations provide that, when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.  The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99."  In this case, 7599 relates to dysfunction of the genitourinary system.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  Here, the additional code 7804 refers to painful scars.  

Under 38 C.F.R. §4.115a, DC 7525, chronic epididymo-orchitis is rated as urinary tract infection.  Urinary tract infection is evaluated as 10 percent disabling where there is long term therapy, one to two hospitalizations per year, and/or where intermittent intensive management is required.  A 30 percent evaluation is warranted where there is recurrent symptomatic infection requiring drainage or frequent hospitalization (greater than two times per year), and/or where continuous intensive management is required.  Where there is poor renal function, urinary tract infection is evaluated as renal dysfunction.  

Under DC 7529, benign neoplasms of the genitourinary system are rated as voiding dysfunction or renal dysfunction, whichever is predominant.  Voiding dysfunctions are evaluated according to urine leakage, frequency, or obstructed voiding.  

DC 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. Note (1) states 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  38 C.F.R. § 4.118.

DC 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate diagnostic code.  38 C.F.R. § 4.118.

On VA examination in February 2010, the Veteran reported constant throbbing pain at the top of his left testicle.  He indicated that he had difficulty sitting for long periods.  He denied taking medication, but indicated that scrotal support and nonsteroidal anti-inflammatory (NSAID) medication were recommended.  He noted that NSAIDs did not work.  The examiner indicated that there was no history of genitourinary trauma, neoplasm, or general systemic symptoms due to genitourinary disease.  He also noted that there was no history of urinary symptoms, to include leakage, recurrent urinary tract infections, obstructed voiding, or stones; or of renal dysfunction, nephritis, or hydronephrosis.  Physical examination revealed normal bladder and urethra.  The left testicle was tender.  The epididymis, spermatic cord, scrotum, and seminal vesicles were normal.  

On VA examination in August 2015, the diagnosis was testicular pain.  The Veteran reported that pain was triggered by heavy lifting and exercising.  The examiner indicated that the Veteran did not have a voiding dysfunction or urine leakage, history of recurrent symptomatic urinary tract or kidney infections, erectile dysfunction, retrograde ejaculation, or a history of chronic epididymitis or prostatitis.  Physical examination revealed normal testes and epididymis.  

A September 2015 scrotal ultrasound revealed no evidence of testicular torsion or intratesticular mass.  There was no asymmetry in color Doppler or spectral assessment of the testes or epididymis to suggest inflammation.  No hydrocele was identified.  The impression was unremarkable scrotal ultrasound.  

An additional VA examination was carried out in May 2017.  The diagnoses were erectile dysfunction and neoplasms of the male reproductive system.  The Veteran's history was reviewed.  He reported pain with prolonged sitting and with intercourse.  The examiner noted that there was no renal dysfunction due to the condition.  He also indicated that the Veteran did not have a voiding dysfunction, retrograde ejaculation, or history of chronic epididymitis or prostatitis.  Physical examination revealed normal testes and epididymis.  The examiner indicated that the Veteran had experienced a benign neoplasm that resulted in excision of a spermatocele in 2001.  He noted that there were no residual conditions or complications due to the neoplasm.  He reported that the Veteran had a 2 cm by .25 cm scar on his left scrotum.  He indicated that the functional impact of the disability included inability to tolerate prolonged sitting, and limitations due to the severity of pain.  He concluded that diagnostic code 7529 contemplated the Veteran's symptoms.    

Having reviewed the evidence pertaining to this claim, the Board concludes that an evaluation in excess of 10 percent is not warranted for status post left spermatocelectomy with epididymitis.  In this regard, the current evaluation contemplates one or two scars that are unstable or painful.  A higher evaluation under the criteria for scars requires evidence of three or four scars that are unstable or painful.  Such is not shown by the record.  

The Board has also considered whether evaluation pursuant codes regarding dysfunction of the genitourinary system might result in a higher evaluation; however, there is no evidence of urinary tract infection, or voiding or renal dysfunction associated with this disability.  Thus, a higher evaluation is not available under §4.115a.  

The Board accepts that the Veteran has experienced functional impairment due to left testicle pain; however, neither the lay nor medical evidence reflects symptoms supportive of the next higher evaluation.  The current rating is based, in part, on the presence of pain which is the main symptom associated with the service connected disability.  The rating criteria adequate address the Veteran's symptoms.  

The Board notes that the Veteran is competent to report that his disability is worse; however, the more probative evidence consists of that prepared by neutral skilled professionals based on trained observation and examination, and such evidence demonstrates that the currently assigned evaluation for the Veteran's status post left spermatocelectomy with epididymitis is appropriate.  As such, the appeal is denied.


ORDER

Entitlement to an evaluation in excess of 10 percent for status post left spermatocelectomy with epididymitis is denied.



____________________________________________
G. A. WASIK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs