Citation Nr: 20002179 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-20 215 DATE: January 9, 2020 ORDER An initial rating in excess of 10 percent for varicocele left is denied. An increased compensable rating for surgical scars s/p gonadal vein emobilization, left testicle, as secondary to the service-connected varicocele left, is denied. New and material evidence has been submitted, the previously denied claim for service connection for atopic dermatitis is reopened. REMANDED Service connection for atopic dermatitis is remanded. FINDINGS OF FACT 1. The Veteran’s varicocele left, does not result in persistent edema, incompletely relived by elevation of extremity, with or without beginning stasis pigmentation or eczema. 2. The Veteran’s surgical scars s/p gonadal vein emobilization, left testicle, does not cover an area of 144 square inches (929 sq. cm.) or greater, and they are not unstable or painful. 3. New evidence has been received since the February 2005 rating decision, which raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for varicocele left have not been met. 38 U.S.C. §§ 1155, 5100, 5103; 38 C.F.R. §§ 3.159, 4.115a, 4.115b, Diagnostic Code 7120. 2. The criteria for an initial compensable rating for the Veteran’s surgical scars s/p gonadal vein emobilization, left testicle, as secondary to the service-connected varicocele left, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to November 1990. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. An increased rating for varicocele left, is denied. The Veteran asserts that his varicocele left results in not being able to ride a bike or stand or walk for prolonged periods of time due to pain and discomfort. The Veteran is currently in receipt of a 10 percent evaluation for varicocele left, under Diagnostic Code 7599-7120. Hyphenated diagnostic codes are used when a rating under one 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. The hyphenated diagnostic code here indicates that the Veteran is service connected for an artery and vein disability rated analogously as varicose veins. Under Diagnostic Code 7120, a noncompensable evaluation for varicose veins is warranted when it is asymptomatic, palpable or there are visible varicose veins. A 10 percent evaluation is warranted for intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent evaluation is warranted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent evaluation is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration, and a 100 percent evaluation is warranted for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120. The Veteran was afforded a VA examination in October 2014. The examiner noted that the Veteran had varicocele in his left and right testicles. The Veteran reported that he had surgery on July 30, 2014 for his varicocele to help relieve the pain. He reported that surgery helped relieve the pain, but still rated the pain as 7/10. He reported the pain was relieved when resting, sitting down, and emptying his bladder. He also reported that his varicocele is still visible and painful. The examiner noted that arteriovenous fistula, angioneurotic edema, or erythromelalgia were not applicable. The Board notes that the examiner did not report edema, induration, stasis pigmentation, or eczema. The Board notes that the Veteran is competent to report self-observable symptoms, such as pain and swelling. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board must apply the Diagnostic Code that pertains to the condition. Here, the Veteran’s varicocele does not allow for an increased rating, under Diagnostic Code 7120. After a complete review of the evidence of record, the Board finds that an increased evaluation is not warranted for this disability. The symptoms the Veteran has described relating to varicocele, is pain and swelling in his testicles after prolonged walking or standing. The Veteran has not reported incomplete relief by elevation of extremity, nor is there evidence of record, indicating such. The Board reiterates that this disability is rated by analogy and finds that the Veteran’s disability is most closely described by the criteria for a 10 percent evaluation under Diagnostic Code 7120. The Board also notes that Diagnostic Code 7523 contemplates complete atrophy of the testis. The complete atrophy of one testicle is noncompensable and complete atrophy of both is given a 20 percent evaluation. Here, the weight of the evidence is against a finding that the Veteran’s varicocele is as severe as complete atrophy of both testicles. As such an increased initial rating for varicocele left, is not warranted. Significantly, the Board finds that the Veteran’s predominant symptom, that of pain and discomfort in the testicles, is accounted for by the current 10 percent rating which includes consideration of aching and fatigue. The Board identifies no other appropriate or proximate diagnostic code under which to rate the Veteran’s claim, or other unaccounted for symptoms. Accordingly, an increased rating for varicocele left, is denied. 2. An increased rating for surgical scars s/p gonadal vein emobilization, left testicle, as secondary to the service-connected varicocele left, is denied. The disability is currently rated under Diagnostic Code 7805. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran was afforded a VA examination in October 2014. The examiner indicated that the Veteran’s scar was not painful or unstable. The examiner also noted that the total area of the scar was less than 39 sq. cm. (6 sq. in.). A 2019 VA examination reflected that the Veteran had pain at the site of the surgery, however, the scar itself was not tender or painful. Rather, the area that the Veteran described as painful had not visible scar. After a complete review of the Veteran’s VA and private medical records, it is silent for any complaints or treatment regarding the scarring, after his July 30, 2014 surgery. There is no medical evidence of record that the scarring is unstable or painful. The Board notes that the Veteran has generally reported pain in the area of his surgery, which is compensated by the current 10 percent rating for a left varicocele. However, the scar itself has been found to be painful. The rating criteria for evaluating scars are set forth at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Diagnostic Code 7805 provides that scars (including linear scars) not otherwise rated under Diagnostic Codes 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under Diagnostic Codes 7800-7804 are to be considered. 38 C.F.R. § 4.118, Diagnostic Code 7805. Therefore, the Board has considered all applicable Diagnostic Codes. Diagnostic Code 7801 provides that scars other than on the head, face, or neck that are deep, nonlinear, and cover an area of at least 6 square inches (39 sq. cm.) warrant a compensable evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. Id. As documented in the October 2014 VA examination report, there is no evidence that the Veteran’s scar covers an area of at least 6 square inches, or that it is deep. Thus, Diagnostic Code 7801, is inapplicable. Diagnostic Code 7802 provides that scars, other than on the head, face, or neck, that are superficial and nonlinear, and cover an area of at least 144 square inches (929 sq. cm.) warrant a compensable evaluation. Id., Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. Id. Here, the Veteran’s scar does not cover a surface area of 144 square inches or greater. Thus, Diagnostic Code 7802, is inapplicable. Diagnostic Code 7804 contemplates scars that are unstable or painful. Id., Diagnostic Code 7804. A 10 percent disability rating is assigned for one or two scars that are unstable or painful. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note 1. If one or more scars are both unstable and painful, an additional 10 percent is to be added to the evaluation based on the total number of unstable or painful scars. Id., Note 2. Here, the October 2014 VA examiner found that the Veteran’s scar was not unstable or painful. Thus, Diagnostic Code 7804, is inapplicable. Accordingly, a compensable rating for surgical scars s/p gonadal vein emobilization, left testicle, as secondary to the service-connected varicocele left, is denied. 3. New and Material Evidence The Veteran asserts that he is entitled to service connection for atopic dermatitis. The Regional Office (RO) issued a rating decision in February 2005, denying service connection. The RO based their denial because the Veteran did not have a chronic skin condition in service. The Veteran did not disagree, and the decision became final. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to U.S.C. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). If the VA determines that new and material evidence has been added to the record, the claim is reopened, and the VA must evaluate the merits of an appellant’s claim in light of all the evidence, both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines “new” as not previously submitted and “material” as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board has reviewed the private medical records, pertaining to atopic dermatitis, submitted to VA on October 19, 2004 and February 11, 2014. The records submitted in 2004, contain 9 pages of treatment records, dated February 2000 to April 2004. The 2014 private treatment records contain those treatment records dated February 2000 to April 2004, and also treatment records from June 2008 to March 2010. The Board finds that this evidence is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. The Board also finds that this evidence is material. The submitted evidence includes evidence showing the Veteran has been diagnosed with eczema and has ongoing treatment for skin flare-ups. 38 C.F.R. § 3.385. Therefore, the Board finds that the submitted evidence is new and material and that it does raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156.   REASONS FOR REMAND Service connection for atopic dermatitis, is remanded. The Veteran has been diagnosed with allergic contact dermatitis by VA and a private physician has characterized his skin condition as eczema. See VA Treatment Record dated July 16, 2014 and Private Treatment Record dated March 22, 2010. Thus, the Board concedes that there is a current diagnosis. After a review of the Veteran’s Service Treatment Records (STRs), the Veteran has complained of and received treatment for dermatitis. In October 1989, the Veteran had a physical examination, where the examiner documented that he had contact dermatitis. In November 1989, the Veteran sought treatment for a rash on his neck and was diagnosed with “very mild atopic dermatitis” and was prescribed a cream. Thus, the Board concedes that there was an in-service incurrence. The Veteran was afforded a VA examination in July 2004. The examiner gave his impression, that it is “likely cholinergic urticaria”. However, the examiner did not provide an opinion as to the etiology of the Veteran’s skin condition. Therefore, the Board finds that a VA medical nexus opinion is needed to determine whether the Veteran’s in-service diagnosis and treatment of mild atopic dermatitis is related to his current skin condition. The Board also finds that a remand is necessary to obtain an examination to clarify the diagnosis of the claimed skin condition. There has been confusion as to what skin condition the Veteran currently is afflicted with. He was diagnosed with mild atopic dermatitis in-service, cholinergic urticaria in 2004, allergic contact dermatitis in 2014, and eczema by his private physician. See STR dated October 6, 1989; VA Treatment Record dated July 10, 2004, July 16, 2014; Private Treatment Record dated March 22, 2010. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination in order to clarify the diagnosis for the Veteran’s skin condition and to obtain a VA medical opinion to address the etiology of the Veteran’s skin condition. The examiner should answer the following question: Is it at least as likely as not (50 percent or greater) that the Veteran’s skin condition either began during or was otherwise caused by his military service. In doing so, consider the Veteran’s in-service diagnosis and treatment. See STR dated October 6, 1989 (contact dermatitis documented) and November 27, 1989 (“very mild atopic dermatitis” diagnosis and Cyclocort cream treatment). Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.