Citation Nr: 20004064 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 15-19 461 DATE: January 16, 2020 ORDER Entitlement to a compensable rating for service-connected varicocele is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected varicocele, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have any urinary/voiding dysfunction or renal dysfunction due to his service-connected varicocele. 2. Erectile dysfunction was not shown in service or for many years thereafter and is not shown to be directly related to service or to have been caused or aggravated by service-connected varicocele. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for service-connected varicocele have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115(b), Diagnostic Code 7529. 2. The criteria for entitlement to service connection for erectile dysfunction, to include as secondary to service-connected varicocele, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1960 to June 1961. This matter is on appeal before the Board of Veterans Appeals (Board) from a July 2014 rating decision of the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2019, a Board videoconference hearing was held before the undersigned. A transcript of the hearing is of record. At the hearing, the record was held open for 30 days to allow the Veteran an opportunity to obtain and submit an evaluation from his current treating physician regarding the current severity of his service-connected varicocele. To date, no additional evidence has been received. 1. Entitlement to a compensable rating for service-connected varicocele. The Veteran has essentially asserted that his service-connected varicocele results in voiding dysfunction and pain and should be assigned a higher, compensable rating. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant’s favor. 38 C.F.R. § 4.3. The Veteran’s service-connected varicocele has been rated as noncompensable under 38 C.F.R. § 4.115b, Code 7529. Under this Code, benign neoplasms of the genitourinary system are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Notably, it is neither shown nor alleged that the Veteran has renal dysfunction due to the varicocele, but he has alleged voiding dysfunction due to this pathology. Cases of voiding dysfunction are rated as either urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. With continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent evaluation is warranted for a disability requiring the wearing of absorbent materials which must be changed less than two times per day. A 40 percent evaluation is assigned for a disability requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent evaluation contemplates the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. In cases of urinary frequency, a 10 percent evaluation is warranted for a daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent evaluation contemplates cases of a daytime voiding interval between one and two hours or awakening to void three to four times per night. A 40 percent evaluation is assigned in cases of a daytime voiding interval less than one hour or awakening to void five or more times per night. In cases of obstructed voiding, a zero percent evaluation contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10 percent evaluation is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or a combination of the following: post-void residuals greater than 150 cc, urometry with a markedly diminished peak flow rate (less than 10 cc/sec), recurrent urinary tract infections secondary to obstruction, and stricture disease requiring periodic dilation every two to three months. A 30 percent evaluation is warranted for urinary retention requiring intermittent or continuous catheterization. Service connection for varicocele was granted by a September 1983 rating decision. A noncompensable rating was assigned effective March 17, 1983. In a February 2014 claim, the Veteran sought an increased rating. In a March 2014 statement in support of claim, the Veteran indicated that while in the Navy, his instructor used the butt of a rifle to check the inseam of the troops’ trousers. This procedure at times contacted the testicles, causing them to swell and the Veteran indicated that he had been having problems ever since this occurred. The Veteran was afforded a VA examination in conjunction with his claim for increase in June 2014. At the examination he was diagnosed with bilateral varicocele and erectile dysfunction. The Veteran reported some mild discomfort in the area of the varicocele since service. He indicated that he had felt occasional burning in the area of the varicocele. He also reported erectile dysfunction. Additionally, he reported some lower urinary symptoms that were controlled by medication. He noted that he had two naturally conceived children and one adopted child. Physical examination showed moderate sized non-tender varicocele present bilaterally and firm, cystic feeling bilateral scrotal masses associated with cord structures 1 cm in diameter most likely spermatoceles or hydroceles. The scrotal structures were nontender. The examiner noted that the Veteran did have voiding dysfunction. However, the etiology of the voiding dysfunction was found to be benign prostatic hypertrophy. In a May 2015 statement, the Veteran indicated that he had suffered testicular damage during service and per information from the Mayo Clinic, individuals who incur an impact injury to the testicular area usually have residual complaints. He indicated that during service, the drill instructor actually struck his testicles with the butt of his gun, causing ongoing pain. He also indicated that subsequently, he experienced continued pains in the area. In a June 2015 statement in lieu of a 646, the Veteran’s representative indicated that the Veteran reported voiding dysfunction and other impairments due to his service-connected varicocele. The representative noted that the Veteran reported the condition getting worse and causing a great deal of problems with his personal life and work. The Veteran felt that he should be assigned a higher rating based on constant voiding dysfunction. At the November 2019 Board hearing, the Veteran testified that he urinated approximately 2 times during the night and 6 times per day and experienced approximately two accidents per week, which involved a change of clothing. Although the above summarized evidence does show some voiding dysfunction, it does not show that the dysfunction results from the service-connected varicocele. To the contrary, the June 2014 VA examiner specifically found that the Veteran’s voiding dysfunction was the result of benign prostatic hypertrophy rather than from the varicocele. There is also no other medical evidence tending to indicate that the varicocele causes voiding dysfunction/urinary symptoms. Additionally, although the Veteran has asserted that these symptoms are caused by the service-connected varicocele, as a layperson with no demonstrated medical expertise in identifying the etiology of voiding/urinary dysfunction, this assertion may not be afforded any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the weight of the evidence is against a finding that the Veteran’s current voiding dysfunction has been caused by the varicocele. Accordingly, as neither voiding dysfunction due to the varicocele nor renal dysfunction due to the varicocele has been established, a compensable rating under Code 7529 is not warranted. 38 C.F.R. § 4.115b. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected varicocele. The Veteran has essentially alleged that he has erectile dysfunction due to injury in military service and/or his service-connected varicocele. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s service treatment records do show the development of the varicocele but do not show findings or complaints of erectile dysfunction. Post-service, the Veteran underwent a VA examination to assess his varicocele in August 1983. It was noted that he experienced scrotal swelling during service, which resulted in varices appearing in his scrotum. The swelling eventually subsided, and the Veteran indicated that he had experienced no more difficulties of this kind. However, the varicose veins had remained. Physical examination showed the previously mentioned varices on the scrotum but otherwise normal male genitalia. The diagnosis was varicocele. At a May 2004 VA primary care visit, the Veteran reported that he had noticed having impotency about 1 year previously and the problem had worsened since he developed an inguinal hernia. The Veteran hoped the problem would get better once his hernia was repaired. An October 2004 VA primary care record also includes a finding of impotence and a November 2004 VA cardiology record also shows that the Veteran was noted to have a history of erectile dysfunction. At a March 2005 VA examination, the current severity of the Veteran’s service-connected varicocele was evaluated. As an aside, he indicated that he had had erectile dysfunction for the past eight years but was not seeking an examination of this problem. He denied any other difficulties and indicated that he had been a father of children in the past. He had had a right inguinal hernia repair recently. In the March 2014 statement, the Veteran indicated that he felt that his ongoing erectile dysfunction had been an on again/off again problem since his testicular injury during service due to trauma from the butt of his drill instructor’s rifle. At the June 2014 VA examination, the Veteran was diagnosed with erectile dysfunction. The Veteran reported that he had two naturally conceived children. In reviewing the claims file, the examiner noted the May 2004 VA primary care visit where the Veteran reported that he had noticed having impotency about 1 year previously and that the problem had worsened since he developed the inguinal hernia. After examination, the examiner opined that the erectile dysfunction was less likely than not caused by the Veteran’s service-connected varicocele. The examiner commented that there was some medical evidence that varicoceles are related to abnormal sperm counts and inability to father children and testicular atrophy but there is not a consensus of medical evidence showing varicoceles cause erectile dysfunction. The examiner found that the Veteran’s erectile dysfunction was most likely caused by aging or microvascular disease. In an August 2014 statement, the Veteran indicated that his erectile dysfunction had been caused by the medication he was given for his heart condition. In the May 2015 statement, the Veteran appeared to indicate that testicular injury during service caused him to be unable to have children. In the June 2015 statement, the Veteran’s representative indicated that the Veteran felt that his erectile dysfunction was directly related to his service-connected varicocele. The above summarized evidence indicates that the Veteran has current erectile dysfunction. However, the service treatment records do not show any findings or complaints of this problem. Also, the post-service medical evidence does not show any indication of erectile dysfunction until approximately 1997 (based on the Veteran reported having the problem for the past 8 years during the March 2005 examination), approximately 36 years after service. The passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, there is no medical evidence of record, which even suggests that the Veteran’s current erectile dysfunction is otherwise directly related to service. Additionally, to the extent the Veteran has asserted that current erectile dysfunction is related to testicular problems during service, including the reported trauma to the area, as a layperson with no demonstrated medical expertise concerning the etiology of erectile dysfunction, this assertion may not be afforded any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran also alleged in the May 2015 statement that testicular trauma experienced during service caused him to be unable to have children. However, this is shown to be inaccurate as the Veteran specifically reported that he had two naturally conceived children during the June 2014 VA examination and similarly reported fathering children at the earlier March 2005 VA examination. Additionally, regarding secondary service connection, the June 2014 VA examiner specifically found that the Veteran’s erectile dysfunction was less likely than not caused by his service-connected varicocele. The examiner supported this opinion with a reasoned rationale, that there was no consensus of medical evidence showing varicoceles cause erectile dysfunction and that the Veteran’s erectile dysfunction was most likely caused by aging or microvascular disease. There is no medical opinion of record to the contrary (i.e. an opinion that the Veteran’s current erectile dysfunction has been caused by his service-connected varicocele). Additionally, as a layperson with no demonstrated medical expertise concerning the etiology of erectile dysfunction, an assertion by the Veteran to this effect may not be afforded any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, it is neither shown nor alleged that the Veteran’s service-connected varicocele has aggravated his erectile dysfunction. The record does not contain VA medical opinions specifically addressing whether the Veteran’s erectile dysfunction is directly related to service or has been aggravated by his service-connected varicocele. However, there is no medical evidence of record suggesting any such direct causation and/or aggravation and the Veteran has made only a bare assertion that testicular trauma during service caused his erectile dysfunction. He has not specifically alleged that his service-connected varicocele has aggravated erectile dysfunction. Under these circumstances, a remand to obtain such additional medical opinions is not necessary. 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). (Continued on the next page)   Thus, in sum, as erectile dysfunction was not shown in service or for many years thereafter and is not shown to be related to service or to have been caused or aggravated by the service-connected varicocele, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. §§ 3.303, 3.310; Shedden, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Alemany, 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.