Citation Nr: 20030184 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 14-39 227 DATE: April 29, 2020 ORDER Entitlement to an initial compensable rating for status post-surgical excision left testicular seminoma (testicular cancer residuals) is denied. FINDING OF FACT As of August 31, 2012, the Veteran did not experience abdominal, groin, hip, or right testicular pain as residuals of his testicular cancer. Rather, his testicular cancer resulted in the removal of one testicle and thigh pain. CONCLUSION OF LAW The criteria for an initial compensable rating for testicular cancer residuals have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.31, 4.115a, 4.115b, Diagnostic Codes (DCs) 5260, 7523, 7524, 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2008 to August 2012. The case is on appeal from a September 2012 rating decision. In August 2018, the Board denied the Veteran’s claims for an initial compensable rating for testicular cancer residuals and restoration of a 10 percent rating for limitation of flexion of the left leg and myositis of the left vastus lateralis muscle. The Board also remanded claims of service connection for a low back disorder and sleep apnea. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted the parties’ joint motion for partial remand (JMPR) which returned the claim for an initial compensable rating for testicular cancer residuals to the Board. The Court also granted the parties’ joint motion to terminate the appeal in part which ended the Veteran’s appeal of the restoration of his 10 percent rating for limitation of flexion of the left leg and myositis of the left vastus lateralis muscle. Therein, the Veteran conceded that the rating reduction, effective January 23, 2014, was proper. Before the Board, in an April 2020 informal hearing presentation, the Veteran’s representative noted the issues of service connection for sleep apnea and service connection for a low back disorder. The Board remanded these issues in August 2018, but no supplemental statement of the case has yet been issued. Therefore, the Board does not have jurisdiction over these issues at this time. 38 C.F.R. § 19.31. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to an initial compensable rating for testicular cancer residuals Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran claims that his current noncompensable rating does not contemplate all of his residuals of his testicular cancer. In this regard, the Court has asked the Board to address several medical treatment records noted below. Malignant neoplasms of the genitourinary system are evaluated under 38 C.F.R. § 4.115b, DC 7528. Under DC 7528, a 100 percent evaluation is assigned for malignant neoplasms of the genitourinary system. A note following DC 7528 provides that following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures, the rating of 100 percent will continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals. 38 C.F.R. § 4.115b, DC 7528. Under DC 7524, removal of one testis will result in a noncompensable rating, and removal of both testes will result in a 30 percent evaluation. C.F.R. § 4.115b, DC 7524. Under DC 7523, complete atrophy of one testes warrants a noncompensable rating and of both testes warrants a 20 percent rating. 38 C.F.R. § 4.115b, DC 7523. In cases of removal of one testis as a result of service-incurred injury or disease, with the absence or nonfunctioning of the other testis unrelated to service, an evaluation of 30 percent will be assigned for service-connected testicular loss. 38 C.F.R. § 4.115b. Voiding dysfunctions are rated under 38 C.F.R. § 4.115a which provides for ratings based on voiding dysfunction is available where there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 60 percent rating is where voiding dysfunction requires the use of an appliance or wearing of absorbent materials which must be changed more than four times per day, a 40 percent rating is warranted where the appliance must be changed 2-4 times per day, and a 20 percent rating is warranted where the appliance must be changed less than twice per day. A rating is also available for urinary frequency. Id. A 40 percent rating is available for daytime voiding interval less than one hour or awakening to void five or more times per night; a 20 percent rating is available for daytime voiding interval between one and two hours or awakening to void three or four times per night; and a 10 percent rating is available for daytime voiding interval between two and three hours or awakening to void two times per night. Id. In reviewing the record, the Board notes that compensation is generally effective from the day after separation from service (in this case August 31, 2012). 38 C.F.R. § 3.400. However, symptoms experienced by a veteran in the months just prior to the rating period may be relevant to the severity of the veteran’s disability during the claims period. This is particularly true in this case as the Veteran was discharged because of residuals of his testicular cancer. The March 2012 VA/Department of Defense (DOD) Joint Disability Evaluation Board Claim notes pain at the inguinal incision site in the area where his left testicle used to be. An April 2012 VA examination notes pain on the left side of the Veteran’s stomach, groin, thigh, and right testicle. At the April 2012 VA examination, the Veteran was diagnosed with residual post-surgical left groin and thigh pain, left iliac/inguinal pain, and right testicle pain. The Veteran was afforded a general VA examination in April 2012. Review of the Veteran’s genitourinary system revealed that the Veteran’s testes descended bilaterally, no scrotal masses were noted, and a normal epididymis with cremasteric reflex was found. The Veteran reported intermittent pain originating in the left testicle radiating to the right testicle, persistent pain in the left abdomen with intermittent radiation through the left groin and thigh. A May 2012 private treatment record notes constant lower left abdomen pain and groin pain that radiated into his left leg and right testicle. A June 2012 private treatment record addressing the Veteran’s lumbar spine notes pelvic floor muscle (PFM) restrictions and that the Veteran received bladder and PFM education as well as PFM exercises. PFM assessment revealed a non-relaxing and overactive PFM. Left hip range of motion was also noted as restricted. Four to six weeks of physical therapy was noted. No further physical therapy records were provided by this private clinician. Other private treatment records from May and June 2012 are also available for review. In May 2012, the Veteran reported having left lower abdomen pain and groin pain since the surgery. By early June, the Veteran reported pain about the same at 3/10 after he stopped taking some pain medicines. Later in June, the Veteran noted pain limiting some strenuous activities; however, pain was localized near the incision and on occasion radiates down the inner thigh. Diagnoses of neuropathic pain and groin pain were noted. The Veteran asks the Board to grant a 30 percent rating because he lost one of his testicles due to prostate cancer which was diagnosed while he was serving in Afghanistan. The Veteran has reported having right testicular pain in the months prior to the beginning of the claims period. However, there is no indication of atrophy or nonfunctioning of the remaining right testicle. The rating code makes clear that loss of one testicle is to be assigned a noncompensable rating. 38 C.F.R. § 4.115b DCs 7523, 7524, 7528. The Board must apply the laws passed by Congress and regulations promulgated thereunder and does not have the ability to grant a compensable rating for the loss of one testicle. Further, in his notice of disagreement, appeal to the Board, and other lay statements of record, there is no indication that the Veteran has continued to feel pain in his right testicle. Thus, the evidence of record does not demonstrate that a compensable rating for this pain is warranted. Even if he was still experiencing pain in this area, the Board notes that the Veteran is already rated 10 percent under DC 7804 for his painful left inguinal scar in that area. However, the Board must also contemplate the Veteran’s left side abdominal, groin, and thigh pain. The Veteran reported abdominal pain as late as May 2012. In June 2012 private treatment records, the Veteran reported decreasing pain and had stopped taking pain medication. Pain was noted as preventing the Veteran from engaging in some strenuous activities. However, after June 2012 there are no private treatment records noting pain. As the Veteran reported improving symptoms in June 2012, the Board finds that the lack of follow-up treatment for pain in the abdomen and groin indicates that this pain had resolved by August 2012. Similarly, physical therapy for restricted left hip range of motion for 4-6 weeks began at the end of June 2012. No further treatment has been indicated by the Veteran in lay statements during the course of this appeal. Therefore, the Board finds that by August 2012, the Veteran’s abdomen, groin, and hip pain no longer resulted in functional impairment. As to the Veteran’s thigh pain, the Board notes that the Veteran was already in receipt of 10 percent for limitation of flexion in the left knee with myositis of the left vastus lateralis muscle until January 24, 2014. The Veteran has conceded that the reduction in compensation for this disability effective January 24, 2014 was proper. Thus, the Veteran’s ratings during the claims period fully contemplates his left thigh pain. See October 14, 2014 Statement of the Case (noting that the 10 percent rating had been assigned in part because of pain in the thigh muscle). Finally, in June 2012, it was noted that the Veteran had PFM impairment that resulted in a non-relaxing and overactive PFM. The Veteran was given exercises for his PFM and was placed in physical therapy for 4-6 weeks. No further treatment or report of PFM symptoms is of record. The Veteran has not reported any change in urinary frequency or feelings of urinary urgency. Notably, the Veteran has not reported having PFM issues in his December 2012 notice of disagreement or appeal to the Board. In conclusion, after review of the record, the Board finds that an initial compensable rating for testicular cancer residuals is not warranted. The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. George 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.