Citation Nr: 1817236 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-19 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable rating for status post left varicocele ligation, to include erectile dysfunction symptomatology. 2. Service connection for a right leg disability. 3. Service connection for a left leg disability. REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran had active service from August 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 Atlanta, Georgia Regional Office (RO) decision denying the Veteran's claims for service connection for left and right leg disabilities, and granting a noncompensable rating for status post varicoele ligation. The Veteran and his attorney appeared before the Board in January 2015. A transcript and post-hearing brief are of record. In September 2015, the Board remanded the claims for further VA examination. In August 2016, a VA examination was conducted to fulfill the remand adequately. Stegall v. West, 11 Vet. App. 268 (1998). In January 2018, the RO issued a Supplemental Statement of the Case (SSOC) by which it continued to deny service connection to the claimed leg disabilities and an increase to a compensable rating for service-connected varicocele ligation. FINDINGS OF FACT 1. For the entire initial rating period from October 5, 2009, the Veteran's varicocele ligation disability has not resulted in poor renal function, recurrent symptomatic infection requiring drainage/frequent hospitalization, and/or continuous intensive management, or long-term drug therapy. 2. A right leg disability was not shown in service or within the first post-service year, and has not been shown related to a disease or injury of service origin. 3. A left leg disability was not shown in service or within the first post-service year, and has not been shown related to a disease or injury of service origin. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for varicocele ligation have not been met or more nearly approximated during any part of the initial rating period from October 5, 2009. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1 - 4.14, 4.115a, 4.115b, Diagnostic Code 7525 (2017). 2. The criteria for entitlement to service connection of a right leg disability have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304(b), 3.306, 3.309 (2017). 3. The criteria for entitlement to service connection of a left leg disability have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304(b), 3.306, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiency in either the duties to notify or assist, other than to request a new examination that has been provided; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). No additional notice is required concerning the appeal for a higher initial rating for varicocele ligation because it arises from the Veteran's disagreement with the initial rating following the grant of service connection for varicocele ligation. Under these circumstances, no further notice requirements under law are required as to this issue since service connection was granted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). VA has also satisfied its duty to assist the Veteran in the development of the claims. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA has otherwise obtained the Veteran's service records, post-service VA treatment records, identified private treatment records, and his filed statements, including briefs from his lawyer. The record shows that the Veteran's service treatment records (STR) and medical treatment records have been obtained and associated with the claims folder. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence necessary to adjudicate the claim fairly that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, VA's duty to assist in locating additional records has been satisfied. The Veteran has been afforded two examinations to determine the etiology of his leg disabilities and severity of his service-connected varicocele ligation over the course of this case. Each examination contains findings responsive to the applicable rating criteria. Further, each examination included a thorough discussion of the Veteran's symptomatology relating to those disabilities. As such, the Board finds them adequate for the purpose of deciding the appealed issues. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Indeed, although the Veteran argued through counsel in January 2015 that the March 2010 examination was outdated and inadequate in providing erectile dysfunction rationales, the Veteran has not argued it inadequate upon other fact issues, or that the August 2016 VA examination is somehow inadequate. II. Service Connection - Right and Left Leg Claudication Disabilities To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted on a presumptive basis for certain chronic diseases, if they manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). The Veteran has a current diagnosis of a disability of his legs noted as intermittent claudication in his VA medical records, as of his March 2010 examination, to which he and his lawyer testified at his hearing was noted in his medical records. Thus, the first Hickson element of service connection is met. As to the second element of service connection, the Veteran has testified and his service treatment records (STR) note he suffered phlebitis in both legs in service in 1979. STRs show further complaints of pain in both legs, such as a complaint of right leg calf pain in July 1981 when awaking from bed, though the Veteran's separation examination notes lower extremities as normal. Thus, the second element of service connection is met. As to the third Hickson element of service connection, the Board previously remanded these claims of both legs to obtain a more current VA examination. In August 2016, the VA examiner found the Veteran has no current vascular condition of his legs, including post-phlebitic syndrome. Having reviewed the Veteran's claim file, the August 2016 examiner found no history of claudication, and therefore opined no pathology exists to connect the Veteran's noted 2010 claudication disability as chronic, for purposes of this appeal, to the Veteran's service. Lastly, the examination specifically screened for several known and related conditions, but the Veteran tested negative for each; and a test for bilateral leg pain was normal. Previously, a March 2010 examination found that it is less than likely as not that the Veteran's leg condition is related to his bilateral leg condition noted in service. As rationale, the March 2010 examiner explained that, on reviewing the service treatment records, the bilateral leg condition was acute and resolved with rest, modifying activity and NSAIDs. Moreover, the right knee showed no instability, effusion, weakness or subluxation. Likewise, the left knee showed no locking pain, crepitus or ankylosis. Examination of the ankles showed the same. The Board finds the August 2016 examiner's opinion competent due to her education and credible due to her experience as an examining physician. Thus, the Board lends it great weight among the evidence presented and probative of the Veteran's claims. Likewise, the Board finds the March 2010 examiner's opinion competent due to the examiner's education and credible due to experience as a physician; and therefore lends it great weight. As such, the Board finds that service connection on a direct basis is not warranted for a right or left leg disability in light of the medical etiological opinions presented on examination of the Veteran's legs and records, when weighed against other evidence of record, including the Veteran's own compent and credible lay statement, particularly of his pain. Although positive medical evidence is generally necessary for a nexus to service, lay evidence can also be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or, in some cases, as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, but the Board can consider bias in lay evidence as well as conflicting statements and actions by the Veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the Board is not free to substitute its own judgment for that of such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As to the theory of presuming service connection of certain chronic conditions, the Board here notes the Veteran's 2010 diagnosis of claudication is not among those that 38 C.F.R. § 3.309(a) identifies; and therefore the Board does not further evaluate this theory since it cannot apply to the diagnosed condition. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the preponderance of the evidence is against a finding that the disability manifested either in-service or within the first post-service year. Id.; 38 C.F.R. §§ 3.303(b), 3.307; Walker v. Shinseki, 708 F.3d 1331 (2013). The Board notes that the Veteran's separation examination is silent for any complaints or diagnoses of leg disabilities. The Veteran's 1982 separation examination notes the Veteran's lower extremities as normal, even as it noted his varicocele ligation disability and surgical scar. As to the Veteran's descriptions of his leg pain, STRs reveal some complaints of leg pain, but also a September 1979 x-ray showing the right leg as normal. A service treatment record dated 1981 appears to report the Veteran slamming a leg into some sort of equipment, and includes a notation of a negative radiographic report; but there is nothing more noted in the STRs. In an October 2010 clinical note, the Veteran reported he has had problems with his legs aching at night and feeling numb in mornings for years; and that he had phlebitis, or swelling of the legs, in service. However, a review of the Veteran's file shows no complaints between his service and 2010. The extraordinary gap of complaints for nearly two decades does not show continuity of symptomatology. For the showing of chronic disease in service, a combination of manifestations must sufficiently identify the disease entity, and sufficient observation must establish chronicity at the time, as distinguished from merely isolated findings. See 38 C.F.R. § 3.303(b) (2017). Therefore, although the Veteran has complained of pain in both legs pain many years after service, the Board cannot find that the Veteran's right or leg claudication disability, diagnosed in 2010, was chronic in or immediately following service. Moreover, when chronicity in service is not adequately supported, service connection may be established by a showing of continuity of symptomatology after discharge. See 38 C.F.R. § 3.303(b) (2017). To the extent that the Veteran contends he has experienced leg pain symptoms since service, the Board initially notes that he is competent to report such symptoms. See Jandreau, 492 F.3d at 1377. However, after reviewing the record in its entirety, the Board does not find the Veteran's assertions as to his continued symptomatology outweigh the lack of evidence to show a current diagnosis or nexus to his service of his 2010 diagnosis. Accordingly, continuity of symptomatology is not shown. The Board acknowledges that the Veteran experiences leg pain. However, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) aff'd 259 F.3d 1356 (Fed. Cir. 2001) (affirming on other grounds without addressing pain alone). As leg pain is not a disability, it cannot by itself be service-connected. In the absence of a present disability, there can be no valid claim. Accordingly, entitlement to service connection for a left or right leg disability is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Begmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir.1997). The Board finds that the preponderance of competent evidence of record weighs against finding that the Veteran's right and left leg disabilities are proximately caused by his service because there is no competent positive etiological opinions of record, and the Board may not substitute its own. Moreover, the Veteran has not been shown competent to make such an opinion regarding medical etiology. See Jandreau, 492 F.3d at 1377. Because the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right and left leg disabilities on appeal, the benefit of the doubt provision does not apply, and the claims must be denied. See 38 U.S.C. § 5107. III. Increased Ratings-Varicocele Ligation Disability evaluations are determined by applying the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations to apply, 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 service-connected varicocele ligation is rated noncompensably (0 percent) disabling under Diagnostic Code 7599-7525. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). Diagnostic Code 7525, is described as the following: Epidiymo-orchitis, chronic only: Rate as urinary tract infection. For tubercular infections: Rate in accordance with Secs. 4.88b or 4.89, whichever is appropriate. Diagnostic Code 7525, epididymo-orchitis, chronic only, provides for rating as a urinary tract infection. See 38 C.F.R. § 4.115b. The criteria for rating a urinary tract infection are in 38 C.F.R. § 4.115a , which provides a 10 percent rating for long term drug therapy, 1-2 hospitalizations per year, and/or requiring intermittent intensive management. A maximum 30 percent rating is provided for poor renal function, recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. When poor renal function is associated with the urinary tract infection, the condition is to be rated as renal dysfunction. 38 C.F.R. § 4.115a. A 10 percent rating is appropriate when the record shows long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. In this case, the Veteran's varicocele ligation is rated by analogy under 38 C.F.R. § 4.115b , Diagnostic Code 7525, for urinary tract infection. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken considering the possibility that different ratings may be warranted for different time periods. The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Finally, the Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997 ), cert. denied, 523 U.S. 1046 (1998) (affirming Board decision affording higher probative value to a contemporaneous written statement by the Veteran during service than a subsequent assertion years later). The Veteran seeks a compensable rating for service-connected varicocele ligation. Specifically, he contends that the varicocele has resulted in persistent pain and has testified as of January 2015 that he takes sulfate and Tramadol for his condition continuously. After a review of all the evidence, both lay and medical, for the entire initial rating period from October 5, 2009, the Board finds that the criteria for a compensable initial disability rating for the varicocele ligation have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b. On VA examination in August 2016, the Veteran complained of occasional groin pain, but was asymptomatic as to the varicocele for infection or pain when examined in August 2016. Moreover, at no time during the appeal period does any medical evidence show any urinary tract infection; the Veteran and his attorney did not report such infection to the Board, in hearing or filings; and the August 2016 examination found that the Veteran does not take medication to combat infection. Finally, there is no evidence of recurrent symptomatic infection or long-term drug therapy. The Board acknowledges the Veteran's contention that his varicocele occasionally causes sharp pain, and nearly constant, aching pain. See January 2018 Statement in Support of Claim. However, to increase the rating of the Veteran's service-connected varicocele ligation to a compensable rating of either 30% or 10%, the evidenced symptomatalogy must show infection, hospitalization, poor renal function, or long-term drug therapy or intermittent intensive management of some sort. None of that is shown here. 38 C.F.R. §§ 4.115a, 4.115b, DC 7525. In August 2016, VA provided the Veteran an examination of the male genitourinary system, noting his varicocele ligation surgery in service. First, the August 2016 VA examiner noted the Veteran's January 2016 urological ultrasound test shows his testicles are normal, and which indicated a small right hydrocele, left varicocele. Second, the Veteran testified to the Board in January 2015 that he takes sulfate and Tramadol for his varicocele ligation disability, presumptively to manage pain based on the nature of those drugs, and a February 2015 medical note shows both medications. However, the August 2016 examiner found the Veteran no longer takes medication for the diagnosed condition, thereby suggesting the medication was for acute pain and discontinued by August 2016. Third, on reviewing the claims file, the August 2016 examiner found no history of chronic epididymitis. Lastly, in September 2003, in a clinical note, the Veteran reported his scrotal pain began 7-8 months earlier, and was worse than when reporting to the clinic to manage pain, suggesting it has not been continuous since service. Furthermore, the August 2016 VA examiner tested for erectile dysfunction since the Veteran and his lawyer raised the issue at the January 2015 hearing as symptomatology of the claimed disability, noting the use of medications to maintain an erection, but not identifying which medications. In September 2014, the Veteran reported in a clinical note that he gets erections, but cannot sustain them. The record displays no obvious prescriptions for erections, and the post-hearing attorney brief does not relate which medications were taken, if any, for it. However, the August 2016 examiner found the Veteran affirmatively reported he is able to achieve an erection sufficient for penetration and ejaculation with medication. Furthermore, the August 2016 new examination the Veteran and his attorney sought and attained on remand found the Veteran negative for several related conditions, and moreso, notes that the Veteran refused anatomical examination of his penis, testicles, and epididymis, instead choosing to report them verbally as normal with no deformity or abnormality to the examiner. While the Veteran is competent to report his symptoms such as pain, he is not competent to report medical findings of anatomical features of the human body, and the Board does not accept his statement as credible. Noting as well the Veteran's surgical inguinal scar from his surgery, the August 2016 examiner found they were not painful or unstable. Unfortunately, the August 2016 VA examiner was unable to offer a more precise etiological opinion of the Veteran's erecticle dysfunction because the Veteran refused to submit himself to the physical examination offered. The Board finds the August 2016 examiner competent to report her findings due to education and training; and credible due to work experience; and thus lends them great probative value in evaluating the current status of the Veteran's varicocele ligration post surgical status. Previously, the March 2010 examination found that the Veteran urinates every four hours daily, and has no urination problem at night and that he has no urinary incontinence. Although the Veteran reported erectile difficulties, the examiner noted the Veteran reported he is able to have sex, but with less frequency. Although the Board later found the examiner's etiological rationale for erecticle dysfunction inadequate, these reported factual findings remain probative of reproductive and urological function. The Board finds the March 2010 examiner competent due to education to have reported and found such medical facts; and credible due to experience; and thus lends them probative weight. The Board has considered whether a higher initial rating is warranted under any other diagnostic code. Schafrath, 1 Vet. App. at 595. As there has been no diagnosis of, or treatment for, any other disorder of the genitourinary system, the additional diagnostic codes under 38 C.F.R. § 4.115b do not apply. In addition, the Veteran did not report, and the medical evidence does not show, that the Veteran is under a treatment plan that includes taking medication for the diagnosed condition (varicocele), or has renal dysfunction, voiding dysfunction, notable erectile dysfunction, or urinary tract infection associated with the service-connected varicocele. See 38 C.F.R. §4.115a ; see also August 2016 VA Examination Report. As such, the Board finds that the Veteran's varicocele ligation has not been manifested by symptomatology or findings more nearly approximating the criteria for a compensable rating under Diagnostic Code 7525 at any time during the initial rating period under appeal. The Board does not find evidence that the initial rating assigned for the varicocele ligation should be higher for any other separate period based on the facts found during the initial appeal period from October 5, 2009. Instead, the evidence of record supports the conclusion that the Veteran is not entitled to compensation during any time within the period on appeal. See Fenderson at 126. For these reasons, the Board finds that a preponderance of the evidence is against an initial compensable rating from October 5, 2009. The benefit of the doubt doctrine does not apply and the appeal must be denied because the preponderance of the evidence is against the appeal. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has considered whether referral for an extraschedular rating is appropriate for the entire period on appeal. See Thun v. Peake, 22 Vet App 111, 115 (2008) (citing Fisher v. Principi, 4 Vet.App. 57, 60 (1993), and Floyd v. Brown, 9 Vet.App. 88, 95 (1996)). With regard to the first prong of Thun, however, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's varicocele ligation is inadequate. A comparison between the level of severity and symptomatology of the Veteran's varicocele ligation with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology as discussed above. As shown above, the Veteran's varicocele has not resulted in any urinary tract infections, or treatment for the same by drugs continously, which symptoms and treatment are squarely contemplated by the rating criteria. Moreover, while "chronic" as the March 2010 examiner noted, it now has residual symptoms of pain according to the more recent August 2016 examination, which opined that there is not a current diagnosed chronic condition of the bilateral testes causing pain. While the Board acknowledges his complaints of pain and sometimes difficulty getting around, including as early as August 2003, as medical progress notes show, the Board finds that the currently assigned 0 percent rating already contemplates a considerable level of symptomatology, and, therefore, referral is not appropriate, especially since symptoms of the next higher rating are not warranted or shown by the record evidence of long-term drug therapy, hospitalizations of any sort or intermittent intensive management. The record does not establish that the rating criteria are inadequate for rating the Veteran's scar of his varicocele ligation surgery in 1979. Specifically, his respective symptoms of scar pain, or intchiness, of a scar otherwise noted by the August 2016 examination as "stable and well-healed," are addressed by the applicable rating criteria. Moreover, in March 2010 the examiner noted the scar is not painful on examination; there is no skin breakdown; no underlying tissue damage; inflammation is absent and it is not disfiguring, nor does it limit the Veteran's motion. In sum, the schedular criteria for scars and varicocele ligation contemplate a wide variety of symptoms relating to those disabilities, and the Veteran has not demonstrated any symptomatology that falls outside the scope of the applicable criteria. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). Finally, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this instance, there is no evidence that either the scar or the varicocele ligation render the Veteran unemployable. Here, the Veteran reported to his March 2010 examiner that he does not experience any overall functional impairment from his varicocele ligration disability. As such, the issue of a TDIU is not raised by the record and it will not be further addressed. The Board further finds that, since the effective date of service connection, there were no distinct periods of time during which the Veteran's disability was compensable. He is accordingly not entitled to receive a staged rating. Fenderson, 12 Vet. App. at 119. As the preponderance of the evidence is against the claim for a compensable rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to an initial compensable rating in excess of 0% for status post left varicoele ligation, to include erectile dysfunction symptomatology, is denied. 2. Entitlement to service connection for a right leg disability is denied. 3. Entitlement to service connection for a left leg disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs