Citation Nr: A21017407 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 200518-84756 DATE: October 27, 2021 ORDER Entitlement to a disability rating of 40 percent, but no more, for chronic right testalgia is granted on and after August 22, 2016, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT For the period on appeal, the Veteran's chronic right testalgia was manifested as a daytime voiding interval of less than one hour, but not leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times a day. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, on and after August 22, 2016, the criteria for a rating of 40 percent for chronic right testalgia have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.115a, 4.115b, Diagnostic Codes 7599-7527 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1993 to April 1995. A rating decision was issued under the legacy system in October 2017. In February 2018 the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane. The Agency of Original Jurisdiction (AOJ) issued a RAMP supplemental claim decision in January 2019. In July 2019, the Veteran submitting an additional RAMP election form and this time selected the higher-level review (HLR) lane. Instead of performing this type of review, the AOJ issued a rating decision on the merits in September 2019. In September 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: HLR, and requested review of the September 2019 rating decision. In November 2019, the AOJ issued an HLR decision, which identified a duty to assist error and instructed further development. After performing that development, the AOJ issued the rating decision on appeal in April 2020. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 rating decision. 38 C.F.R. § 20.301 (2021). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim, it may not consider this evidence in its decision. 38 C.F.R. § 20.300 (2021). The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501 (2021). If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In subsequent rating decisions, the AOJ has granted a 20 percent rating for the Veteran's chronic right testalgia, effective August 22, 2016. The Board has recharacterized the issue on the title page accordingly. The Veteran has also appealed the grant of that rating and the effective date of that grant; that appeal has been docketed separately and will be the subject of a later Board decision. In a May 2020 statement submitted with his VA Form 10182, the Veteran contends that VA failed in its "duty to investigate" by not asking him about urinary frequency earlier. To the extent that this constitutes a contention that VA has failed in its duty to assist the Veteran, because the Board has considered the Veteran's reports regarding frequency with regard to the full period on appeal, this contention is moot with regard to the issue on appeal. To the extent that this contention forms the basis of the Veteran's appeal with regard to the effective date, that will again be the subject of a later Board decision. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist with regard to the issue being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Chronic Right Testalgia The Veteran contends that his chronic right testalgia warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7527, with a 10 percent rating from April 7, 1995 to August 21, 2016 and a 20 percent rating on and after August 22, 2016. 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 (2021). The Diagnostic Code ending in "99" indicates the disability is rated by analogy to Diagnostic Code 7527. VA received notice of the Veteran's intent to file a claim for an increased rating on August 22, 2016. 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 (2021). 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. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2021). 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. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diagnostic Code 7527 pertains to prostate gland injuries, infections, hypertrophy, or postoperative residuals and provides for rating as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7527. Urinary tract infections are rated as follows: recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating and long-term drug therapy with 1-2 hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent rating. 38 C.F.R. § 4.115a (2021). Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Id. Urine leakage is rated as follows: requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day (60 percent); requiring the wearing of absorbent materials which must be changed 2 to 4 times per day (40 percent); and requiring the wearing of absorbent materials which must be changed less than 2 times per day (20 percent). Id. Urinary frequency is rated as follows: daytime voiding interval of less than one hour, or awakening to void five or more times per night (40 percent); daytime voiding interval between one and two hours, or awakening to void three to four times per night (20 percent); and daytime voiding interval between two and three hours, or awakening to void two times per night (10 percent). Id. Obstructed voiding is rated as follows: urinary retention requiring intermittent or continuous catheterization (30 percent); marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of 1) post void residuals greater than 150 cc, 2) uroflowmetry showing markedly diminished peak flow rate (less than 10 cc/sec), 3) recurrent urinary tract infections secondary to obstruction, or 4) stricture disease requiring periodic dilatation every 2 to 3 months (10 percent); and obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year (noncompensable). Id. During a July 2017 VA treatment appointment over the telephone, the Veteran reported bilateral testicular discomfort or pain for the past 20 years, but slightly worse during the last two years. In emails three days later, the Veteran reported increased urinary frequency and urgency "in the last year or two" but did not further quantify the frequency or onset. In an August 2017 statement, the Veteran reported increased pain "with the past few years showing the most significant increase in pain" and that this pain rendered him "simply unable to remain as focused and remain in the physical positions necessary to do [his] job." The Veteran was afforded a VA examination for male reproductive organ conditions in October 2017. The clinician diagnosed testalgia. The Veteran reported significant worsening over the past couple of years. He did not report taking continuous medication to treat it or having any renal or voiding dysfunction. The clinician found that the Veteran's testalgia would have an impact on his ability to work in the form of reduced stand/walk tolerance. In his December 2017 Notice of Disagreement (NOD) in the legacy system, the Veteran requested an extraschedular rating based on interference with employment due to pain. Specifically, he contended that his pain affected his focus and required him to excuse himself from meetings because he could not remain still. He contended that this resulted in his employer telling him that he was disruptive to meetings with clients and also contended that he was therefore being included in fewer such meetings. The Board will address this request below. In a January 2019 statement, the Veteran requested that, because his disability is rated by analogy, it should be "viewed with consideration of the impact on [his] life," including having "relegated [him] to jobs where [he is] able to work from home." In a September 2019 statement, the Veteran reported that he "often need[ed] to urinate at least every hour" and didn't know that he ever went more than two hours without urinating. He also reported that the urgency had become more pronounced. The Veteran was afforded an additional VA examination for male reproductive organ conditions in December 2019. The primary focus of that examination was the Veteran's separate claim for service connection for erectile dysfunction. The Veteran did not report taking continuous medication to treat his testalgia or having any renal or voiding dysfunction. On examination, his testes were tender. In a statement submitted with his VA Form 10182, the Veteran requested a rating based on functional loss due to pain, weakness, fatigability, or incoordination under DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995). Those factors are pertinent to ratings for musculoskeletal disabilities, which testalgia is not. 38 C.F.R. § 4.45 (2021). They are therefore inapplicable to this appeal. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his chronic right testalgia warrants a 40 percent rating throughout the period on appeal. The Veteran has reported frequently having a daytime voiding interval of less than one hour. The Veteran is competent to report his own observations with regard to the symptoms of his genitourinary disability and his descriptions are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Urinary frequency is a symptom that is within the Veteran's competence to report. The Board therefore finds that a 40 percent rating is warranted based on urinary frequency; this is the maximum schedular rating for urinary frequency. The preponderance of the evidence does not show that a rating in excess of 40 percent is warranted. The maximum schedular rating for urinary tract infection is 30 percent. The only schedular rating for voiding dysfunction in excess of 40 percent is 60 percent for urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. The records do not show, and the Veteran has not reported, using an appliance or absorbent materials due to urine leakage. A 60 percent rating is therefore not warranted. The Board has considered the Veteran's lay statements. As stated above, the Board has accepted those statements as the basis for granting a 40 percent rating. However, nothing in the Veteran's lay statements provides a basis for assigning a higher rating than that assigned herein. As stated above, the Veteran has contended that an extraschedular rating is warranted based on interference with employment. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"); Morgan v. Wilkie, 31 Vet. App. 162 (2019) (holding that the "VA's duty to maximize benefits requires it first to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered," inclusive of the availability of service connection for disability claimed secondary to the service-connected disability); Fisher v. Principi, 4 Vet. App. 57, 59(1993) ("the rating schedule will apply unless there are "exceptional or unusual" factors which would render application of the schedule impractical"). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun, 22 Vet. App. at 115. If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred to the Director of the Compensation Service for consideration of the assignment of an extraschedular rating. Otherwise, referral is not required. 38 C.F.R. § 3.321 (b)(1); Thun, 22 Vet. App. at 116. The threshold question is whether there is an exceptional or unusual disability picture, i.e., one not reasonably described or contemplated by the diagnostic criteria, during the period on appeal. As stated above, if there is none, no consideration of interference with employment or periods of hospitalization is necessary. Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016) (stating that if either element of the Thun test is not met, referral for extraschedular consideration is not warranted). The Board finds that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected chronic right testalgia. The symptoms the Veteran has reported are pain and urinary frequency. The 40 percent rating assigned above is based on his reports of urinary frequency. In addition, Diagnostic Code 7527 calls for rating based on voiding dysfunction or urinary tract infection, whichever is predominant. A urinary tract infection necessarily includes pain, and the maximum schedular rating for such an infection is less than the rating now in effect. Thus, the rating criteria for the Veteran's service-connected chronic right testalgia reasonably describe or contemplate its severity and symptomatology. There is no probative evidence in the record of an exceptional or unusual clinical picture to render impractical the application of the regular schedular standards. The schedular criteria are therefore adequate, and no further discussion of 38 C.F.R. § 3.321 is required with regard to pain. The Veteran asserts that his testalgia prevents him from falling and staying asleep. He is already being compensated for this symptom by the rating assigned for his service-connected insomnia disorder that is associated with his chronic right testalgia. (Continued on the next page) As stated above, without an exceptional or unusual disability picture, there is no need to consider whether there is marked interference with employment. However, even if the Board were to consider the Veteran's reports of pain to constitute an exceptional or unusual disability picture, he has not demonstrated marked interference with employment. The impact the Veteran has reported is decreased focus, inclusion in fewer in-person meetings, and more recently a need to work remotely. As noted above, his sleep impairment symptoms such as decreased focus are already compensated by the schedular rating assigned for his insomnia disorder. Being included in fewer meetings and needing to work remotely are impairments that do not rise to the level of marked interference with employment. Instead, they show a lesser degree of interference. The evidence does not show that his symptoms prevent him from completing tasks at work, cause absenteeism at work, or interfere with his ability to perform aspects of his work as an attorney that do not involve in-person meetings. In his December 2017 statement, he noted that he met with clients by telephone, video conference, as well as in-person. Interference with one type of meeting out of three types of meetings is not a significant impairment. He estimated that he loses up to 50 percent potential clients because of his pain during in-person meetings, but this is hypothetical and there is no probative evidence to support that his conduct during meetings has caused him to lose clients. Remand for referral to the Director of the Compensation service for consideration of an extraschedular rating is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.