Citation Nr: 21003536 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-25 497A DATE: January 21, 2021 ORDER Entitlement to service connection for lumbar herniated discs L4/L5/S1 status post microdiscectomy is granted. Entitlement to service connection for infertility is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial disability rating of 10 percent, but no higher, for left varicocele scar is granted. Entitlement to a disability rating of 50 percent for sinus headaches for the period from June 24, 2011 to November 28, 2018 is granted. Entitlement to a disability rating in excess of 30 percent for the period from November 29, 2018 onward is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of lumbar herniated discs L4/L5/S1 status post microdiscectomy. 2. The Veteran underwent a microdiscectomy in May 2004, during his active service. 3. The Veteran claimed service connection for infertility on June 24, 2011. 4. At no time during the period on appeal has the Veteran’s claimed bilateral hearing loss manifested as any of the following: three or more auditory thresholds at the 500, 1000, 2000, 3000, or 4000 Hertz (Hz) frequencies meeting or exceeded 26 decibels (dB); a single auditory threshold at the 500, 1000, 2000, 3000, or 4000 Hz frequencies meeting or exceeding 40 decibels dB; or speech recognition scores using the Maryland CNC test of less than 94 percent. 5. The evidence is at least in equipoise as to whether the Veteran’s left varicocele scar has manifested with pain. 6. The weight of the evidence is at least in equipoise as to whether, during the period from June 24, 2011 to November 28, 2018, the Veteran’s sinus headaches most closely approximate the criteria for a rating of 50 percent: very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 7. The weight of the evidence is against a finding that for the period from November 29, 2018 onward the Veteran’s sinus headaches manifested as, or most closely approximated, very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbar herniated discs L4/L5/S1 status post microdiscectomy have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for infertility have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 4. The criteria for entitlement to a disability rating of 10 percent, but no higher for left varicocele scar have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. 5. The criteria for entitlement to a disability rating of 50 percent for sinus headaches for the period from June 24, 2011 to November 28, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a. 6. The criteria for entitlement to a disability rating in excess of 30 percent for sinus headaches for the period from November 29, 2018 onward have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1991 to November 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated January 2013. The Board finds that it is necessary to clarify the scope of the claims currently on appeal. In June 2011 the Veteran filed a claim for, in pertinent part, “L varicocele”; “chronic headaches”; “herniated L4/L5/S1, microdiscectomy 2004”; and hearing loss. The January 2013 rating decision denied service connection for the Veteran’s claimed lumbar spine disability; granted service connection for a scar resulting from an in-service left varicocele surgery with an initial disability rating of 0 percent; denied service connection for bilateral hearing loss; and granted service connection for sinus headaches, with an initial disability rating of 10 percent. The Veteran timely filed a notice of disagreement (NOD) in March 2013. In his March 2013 NOD, he clarified that he had been seeking service connection for infertility associated with his in-service left varicocele and/or surgery therefore. In February 2014 the Veteran again sent a written statement to VA regarding his infertility. The Board notes that although the RO has no duty to read the mind of the claimant, the RO should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In direct appeals, all filings must be read in a liberal manner; where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim and the VA is obligated to determine all potential claims raised by the evidence. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). May 2003 notes in the Veteran’s service treatment records (STRs) identify assessments of infertility related to the Veteran’s left varicocele. The Board therefore finds that the Veteran’s June 2011 claim reasonably included a claim for service connection for infertility associated with his left varicocele. The Board also notes the Veteran’s November 2017 allegation of clear and mistakeable error (CUE) in regard to the January 2013 rating decision as it related to his lumbar spine claim. However, a CUE claim represents an attack on a final RO decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As the Veteran timely initiated and perfected an appeal of the January 2013 rating decision as it related to his lumbar spine claim, that decision did not become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There is thus no valid CUE claim relating to the January 2013 rating decision and the Veteran’s lumbar spine disability. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 1. Entitlement to service connection for lumbar herniated discs L4/L5/S1 status post microdiscectomy is granted. April 2004 and August 2004 entries in the Veteran’s STRs reflect that he underwent a microdiscectomy in May 2004 to treat a large central disc extrusion at L5-S1 and a left paracentral disc protrusion at L4-L5. A January 2007 entry in the Veteran’s STRs reflects mild-to-moderate degenerative facet hypertrophy at L4-L5 and central/left paracentral L4-L5 disc protrusion. Private treating provider notes included in the Veteran’s STRs reflect complaints of back and buttock pain, and MRI results reflecting post-surgical changes at L5-S1, including a possible disc versus scar transferring the S1 nerve root and encroaching upon the left neuroforamen. An April 2011 report of medical history reflects continued complaints of low back pain. A February 2013 VA treatment note reflects an evaluation of posterior displacement of the L5 vertebrae and signs of degenerative disc disease. A September 2017 VA treatment note reflects an assessment of paravertebral muscle spasm, lumbar spine, particularly L3-4-5, bilaterally. The Board finds that the weight of the evidence supports a finding that the Veteran was diagnosed with lumbar herniated discs at L4/L5/S1, and that he has a current disability appropriately characterized as lumbar herniated discs L4/L5/S1 status post microdiscectomy. Therefore, the Board concludes that the criteria for entitlement to service connection for lumbar herniated discs L4/L5/S1 status post microdiscectomy have been met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for infertility is granted. As discussed above, the Veteran filed a claim of service connection for “L varicocele” in June 2011. The Board has concluded that the Veteran’s June 2011 claim, read in conjunction with his STRs and March 2013 NOD, support the conclusion that the June 2011 claim for “L varicocele” encompassed a claim for infertility. In April 2014 the RO, construing the Veteran’s March 2013 NOD as a new claim of service connection for infertility, and granted the same on the basis of the Veteran’s in-service diagnosed infertility with left varicocele and atrophy of the left testicle as the underlying cause. The Board adopts these findings and concludes that the criteria for entitlement to service connection for infertility have been met, and the same is hereby granted as to the Veteran’s June 2011 claim. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. Entitlement to service connection for bilateral hearing loss is denied. The Veteran filed a claim of service connection for hearing loss in June 2011. In February 2014 he submitted a written statement to VA in which he reported noticing a significant hearing loss for the previous 8 years. 38 C.F.R. § 3.385 provides that, for VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran’s STRs include an April 2011 audiometric examination reflecting the following results: left ear auditory thresholds of 5, 10, 10, 25, and 35 dB at 500, 1000, 2000, 3000, and 4000 Hz, respectively; and right ear auditory thresholds of 20, 10, 20, 20, and 25 at 500, 1000, 2000, 3000, and 4000 Hz, respectively. The Veteran was afforded a VA hearing examination in February 2014. The February 2014 VA examination results reflect left ear auditory thresholds of 5, 10, 15, 15, and 15 dB at 500, 1000, 2000, 3000, and 4000 Hz, respectively; right ear auditory thresholds of 5, 5, 15, 20, and 15 dB at 500, 1000, 2000, 3000, and 4000 Hz, respectively; and bilateral Maryland CNC Test scores of 96 percent. An April 2018 VA treating provider note reflects no hearing deficits. In light of the foregoing, the Board finds that the weight of the evidence is against a finding that, at any point during the period on appeal, the Veteran had a hearing loss disability for VA purposes. Accordingly, service connection for bilateral hearing loss is not warranted on any basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See e.g. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for bilateral hearing loss is denied. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In adjudicating claims for VA benefits, the burden of proof only requires an “approximate balance” of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is “unique” to the VA adjudicatory process, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. 4. Entitlement to an initial disability rating of 10 percent, but no higher, for left varicocele scar is granted. The Veteran’s left varicocele scar with decreased sensation status post-surgery is currently rated under Diagnostic Code 7805 with a disability rating of 0 percent. Diagnostic code 7805 refers to Diagnostic Codes 7800, 7801, 7802, and 7804. 38 C.F.R. § 4.118. As Diagnostic Code 7800 applies to scars of the head, face, and/or neck, only diagnostic codes 7801, 7802, and 7804 are pertinent here. As in effect at the inception of the appeal period, Diagnostic Code 7801 provides for a compensable rating where there is a scar, associated with underlying soft tissue damage, with an area of at least 6 square inches (39 sq. cm.). Diagnostic Code 7802 provides for a compensable rating where there is a scar not associated with underlying soft tissue damage, with an area of 144 square inches (929 sq. cm.) or greater. Diagnostic code 7804 provides for a compensable rating where there are one or two scars that are unstable or painful. Effective August 13, 2018, revisions were made to Diagnostic Codes 7801 and 7802. Specifically, Diagnostic Code 7801 was revised to state that it addresses scars not of the head, face, or neck, that are associated with underlying soft tissue damage and Diagnostic Code 7802 was revised to state that it covers scars not of the head, face, or neck, that are not associated with underlying soft tissue damage. These revisions remove the requirement that the scars be nonlinear and add the definitions of superficial and deep as part of the pertinent criteria. As a result of these changes, the Notes explaining the meaning of deep and superficial were removed. The following Notes were added to Diagnostic Codes 7801 and 7802: Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 83 Fed. Reg. 32,592 (July 13, 2018), revised 83 Fed. Reg. 38,663 (Aug. 7, 2018). Diagnostic Code 7804 assigns ratings for scars that are unstable or painful. This diagnostic code assigns a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 under the diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7804 was not revised by the recent 2018 regulatory amendments. An April 2011 report of medical history and examination in the Veteran’s STRs does not reflect any evaluation of an unstable or painful scar associated with the Veteran’s left varicocele, and/or any scar with an area of at least 6 square inches (39 sq. cm.) or 144 square inches (929 sq. cm.) or greater. As a general matter, the absence of evidence is not substantive negative evidence. Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). Thus, the Board finds the April 2011 report of medical history to be of minimal probative value as to the status of the Veteran’s left varicocele scar. The Veteran was afforded a VA examination in February 2018. The February 2018 VA examiner documented a 5.5 sq. cm. scar in the upper left suprapubic area that was not painful or unstable, and that had decreased sensation. The Veteran was afforded another VA examination in November 2018, at which time the examiner documented a total of 3 groin scars without underlying tissue damage, that totaled 4 sq. cm. in area. While the Veteran reported no painful scars, one of the groin scars was determined by the examiner to be tender to palpation. Upon consideration of the above, the Board finds the evidence to be at least in equipoise as to whether the Veteran’s left varicocele scar is painful. Accordingly, the criteria for an initial compensable rating for left varicocele scar have been met and the same is hereby granted. 5. Entitlement to a disability rating of 50 percent for sinus headaches for the period from June 24, 2011 to November 28, 2018 is granted; entitlement to a disability rating in excess of 30 percent for the period from November 29, 2018 onward is denied. The Veteran’s sinus headaches are currently rated as 10 percent disabling under diagnostic code 8100 (migraines). A disability rating of 10 percent requires a showing of characteristic prostrating attacks averaging one in 2 months over the last several months; a disability rating of 30 percent requires a showing of characteristic prostrating attacks occurring on an average once a month over last several months; a disability rating of 50 percent requires a showing of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The April 2011 report of medical history in the Veteran’s STRs reflect his complaints of “constant severe headaches.” A February 2013 VA treating provider note reflects that the Veteran reported recurrent headaches for 10 years, occurring approximately twice a week. The Veteran’s providers characterized these headaches as “chronic.” In March 2013 the Veteran again complained of headaches. In April 2013 the Veteran reported that his headaches interfered with his sleep. In September 2014 the Veteran reported to a VA examiner that he experienced morning headaches. VA treating provider notes dated March 2015 and August 2017 reflect the Veteran’s report of morning headaches. At a November 2018 VA examination the Veteran reported a prostrating attack of headache once every two months. The Board also notes the Veteran’s statement to a September 2014 VA mental health examiner that he feared receiving a reprimand or being released from his job due to a recent pattern of missing hours or days of work secondary to symptoms of somatic and mental health disabilities. In March 2015 the Veteran reported that he had been fired for sleeping and missing work. The Board notes that the term “productive of severe economic adaptability” has not been clearly defined by regulations or by case law. The Court of Appeals for Veterans Claims (CAVC) has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as that would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; see also 38 C.F.R. § 4.16. The Board finds that, for the period from June 24, 2011 to November 28, 2018, the Veteran has consistently reported severe headaches of a frequency ranging from twice a week to daily. Further, the Veteran reported that his headaches have contributed to poor work performance resulting in termination. For the period from November 29, 2018 onward, the Veteran’s headaches manifested as characteristic prostrating attacks once every two months. In light of the foregoing, the Board concludes that the weight of the evidence is at least in equipoise as to whether, for the period from June 24, 2011 to November 28, 2018, the Veteran’s headache symptoms most closely approximate the criteria for a disability rating of 50 percent under diagnostic code 8100: very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, the criteria for a 50 percent rating for headaches have been met, and the same is hereby granted for the period from June 24, 2011 to November 28, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a. The Board concludes that, during the period in question, the weight of the evidence is against a finding that the Veteran’s headaches manifested as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, instead manifesting as characteristic prostrating attacks occurring once every two months. 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. Here, the Board finds that the weight of the evidence is against the application of an evaluation in excess of 30 percent for the Veteran’s sinus headaches; thus, there is no question to resolve and the lower rating is appropriate. Id. In light of the foregoing, a grant of a disability rating in excess of 30 percent for headaches for the period from November 29, 2018 onward is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU). A claim for entitlement to a total disability rating based on individual unemployability (TDIU) is inferred from a claim for an increased rating where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As discussed above, the claims currently on appeal include a claim for a higher initial rating for the Veteran’s sinus headaches. Also as discussed above, the evidence reviewed in the adjudication of the Veteran’s sinus headache claim raises evidence of unemployability. While unemployability has been raised, the Veteran has been intermittently employed during the period on appeal. As of July 2015, the Veteran reported being busy with a new job that he “loved.” Therefore, he should be afforded the opportunity to complete a TDIU claim form to provide further evidence of his employment status during the period on appeal. The Board acknowledges the Veteran’s February 2015 formal claim for TDIU, and the August 2015 rating decision denying that claim. However, the TDIU claim inferred from the Veteran’s initial increased ratings claim represents a separate claim. Additionally, several years have passed since the August 2015 denial, and there may be additional evidence regarding the impact of the Veteran’s service-connected disabilities on his employability. Therefore, on remand, the Veteran should be afforded the opportunity to submit additional information in support of his TDIU claim. The matters are REMANDED for the following action: 1. Request that the Veteran provide employment information, including but not limited to names of employers, dates of employment, and annual income, for the entire period on appeal. (Continued on the next page)   2. Thereafter, readjudicate the claim. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.