Citation Nr: 21066707 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-07 494 DATE: November 1, 2021 ORDER A compensable rating for post-operative left hydrocele with bilateral varicocele is denied. An effective date prior to October 22, 2009, for a temporary total rating (TTR) for post-operative left inguinal hernia with ilio-inguinal neuropathy and scar is denied. An effective date prior to October 20, 2010, for the grant of service connection for bilateral varicocele is denied. An earlier effective date prior to October 20, 2010, for the grant of special monthly compensation (SMC) based on loss of use of a creative organ is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June 1970 to May 1971. 2. The left hydrocele/bilateral varicocele has not been manifested by complete atrophy of both testicles or urinary tract infections (UTIs). 3. On October 22, 2009, the Veteran was hospitalized for surgery. 4. On October 20, 2010, the Veteran was diagnosed with bilateral varicocele secondary to service-connected left inguinal hernia with ilio-inguinal neuropathy and scar. 5. The date of the October 20, 2010, VA examination is the earliest date that it is factually ascertainable that the Veteran had a bilateral varicocele related to a service-connected left inguinal hernia. 6. There are no documents or communications of record dated prior to October 20, 2010, that constitute a claim for service connection for bilateral varicocele. 7. For SMC due to loss of creative organ, the earliest date entitlement arose is October 20, 2010. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for post-operative left hydrocele with bilateral varicocele have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.115b, Diagnostic Codes (DCs) 7599-7523 (2021). 2. The criteria for an effective date prior to October 22, 2009, for a TTR for post-operative left inguinal hernia with ilio-inguinal neuropathy and scar have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.29 (2021). 3. The criteria for an effective date prior to October 20, 2010, for the grant of service connection for bilateral varicocele disability have not been met. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (2021). 4. The criteria for an effective date prior to October 20, 2010, for the grant of SMC based on loss of use of a creative organ have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.157, 3.400 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board recognizes that the Veteran's private attorney has requested to withdraw from representation. In an April 2021 letter, the attorney provided good cause for the withdrawal and included a signed statement certifying that a copy of the motion had been sent by first-class mail, postage prepaid, to the Veteran and listed the address to which the copy was mailed pursuant to 38 C.F.R. § 20.6(a) (formerly codified at § 20.608). The Veteran did not file a response within 30 days following receipt of the representative's notice of the motion. The Board is hereby granting the attorney's motion to withdraw from representation. The Veteran was scheduled for an August 2021 hearing before the Board; however, he failed to report to his scheduled hearing. VA regulations provide that if a veteran fails to appear for a scheduled hearing, the case will proceed as though the request for hearing had been withdrawn. 38 C.F.R. § 20.704(d). Accordingly, the Board will proceed with appellate review of the claim. Increased Rating for Post-Operative Left Hydrocele with Bilateral Varicocele Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's hydrocele/varicocele is rated as noncompensable under DCs 7599-7523. He is separately rated for post-operative left inguinal hernia with ilio-inguinal neuropathy and scar under DCs 7338-7804 and ED under DCs 7599-7522. In order for a higher rating to be warranted, the medical evidence must show: complete atrophy of both testicles (20% under DC 7523); epididymo-orchitis as UTI with long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management (10% under DC 7525). Turning to the evidence, a September 2009 VA ultrasound report revealed normal testes, with varicoceles in each testicle. A September 2010 VA urology outpatient treatment record reflected a diagnosis of bilateral varicocele. There was no prostatitis or UTI. There were no lesions, masses, scarring or deformities of the penis. The testicles were non-tender, bilaterally descended, symmetrical, normal orientation lie and consistency and small bilateral varicoceles. There was no evidence of induration, nodularity, tenderness, or bogginess noted for the Veteran's prostate. There were no masses noted. In an October 2010 VA examination, the Veteran reported experiencing recurrent pain in the left testicle which was aggravated by having sex. He took hydrocodone and Percocet daily for pain control. Physical examination revealed normal-sized testes, with varicoceles in each testicle. There was no evidence of atrophy. There was no renal dysfunction or voiding dysfunction. He had a normal penis, prostate and epididymis. An October 2012 ultrasound revealed normal testes with varicoceles in each testicle. There was no evidence of prostatitis or UTI. Upon physical examination, there were no lesions, masses, scarring or deformities of the penis. The testicles were non-tender, bilaterally descended, symmetrical, normal orientation lie and consistency and small bilateral varicoceles. There was no evidence of induration, nodularity, tenderness, or bogginess noted for the prostate. There were no masses noted. A December 2012 treatment record reflected complaints of discomfort in left inguinal region. There was no prostatitis or UTI. Upon physical examination, both testicles were normal size, with no mass, no hydrocele, and no clinical varicocele. An October 2013 treatment record reflected no prostatitis or UTI. There were no lesions, masses, scarring or deformities of the penis. The testicles were non-tender, bilaterally descended, symmetrical, normal orientation lie and consistency and small bilateral varicoceles. There was no evidence of induration, nodularity, tenderness, or bogginess noted for the prostate. There were no masses noted. A compensable rating is not appropriate under either DC 7523 or 7525. A compensable rating is not warranted under DC 7523 because there is no indication of testicular atrophy. The October 2010 VA examination revealed that the testes were normal. There is also no evidence of chronic epididymo-orchitis or UTIs or any other urinary dysfunction, related to the post-operative hydrocele/ varicocele that would warrant a compensable rating under DC 7525. The Board has considered all potentially applicable diagnostic codes and finds no basis upon which to assign a compensable rating for the left varicocele under any alternate code. In sum, the evidence does not show atrophy of both testicles, voiding dysfunction related to epididymitis, or UTIs with long term drug therapy, hospitalizations, or intensive management. As such, the medical evidence weighs against a higher rating. The Board has also considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's post-operative left hydrocele with bilateral varicocele has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Earlier Effective Date for a Temporary Total Rating A TTR may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.29, a TTR will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. 38 C.F.R. § 4.29. Treatment records show that in September 2009, the Veteran was seen due to pain in left groin with movement. On October 22, 2009, he underwent a laparoscopy of the left groin and dissection and division of the ilioinguinal, genitofemoral and lateral femoral cutaneous nerves. In December 2011, the RO granted a TTR based on a hospitalization for left inguinal hernia surgery, from October 22, 2009, followed by a 10 percent rating as of December 1, 2009. An effective date prior to October 22, 2009, for a TTR is not warranted. The Veteran has not asserted, and there is no evidence to show, that the hospitalization for surgery, which took place on October 22, 2009, began prior to October 22, 2009. The evidence indicates that he underwent left groin surgery on October 22, 2009. Under these circumstances, there is no basis for an assignment of an effective date for a TTR prior to October 22, 2009. Accordingly, the claim is denied. Earlier Effective Date for the Grant of Service Connection for Bilateral Varicocele The Veteran seeks an effective date prior to October 20, 2010, for the grant of service connection for bilateral varicocele. He has not put forth any specific contentions as to why he is entitled to an earlier effective date. Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.151. Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. Such an informal claim must identify the benefit sought. Id. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. In December 2011, the RO granted service connection for bilateral varicocele with a noncompensable rating effective October 20, 2010. Service connection for bilateral varicocele was granted without application from the Veteran. An October 20, 2010, examination identified a diagnosis of bilateral varicocele which was secondary to service-connected left inguinal hernia repair. First, a formal or informal application for service connection for a bilateral varicocele disability was not received and service connection was granted for a bilateral varicocele disability, as secondary to left inguinal hernia repair, based on evidence of entitlement raised in VA examinations. Second, the earliest date that it is factually ascertainable that entitlement arose was an October 20, 2010, VA examination. The October 2010 examination was performed to determine the degree of severity of the left inguinal hernia repair. The results noted that the Veteran was diagnosed with bilateral varicocele, which was a complication of his left inguinal hernia repair. The October 2010 VA examination shows that a bilateral varicocele disability was diagnosed in conjunction with the rating of service-connected left inguinal hernia repair. The date of the October 20, 2010, examination is the earliest date that it is factually ascertainable that the Veteran had a bilateral varicocele disability related to his service-connected left inguinal hernia disability. Significantly, earlier December 2001 and May 2003 VA examinations for left inguinal hernia repair did not identify a diagnoses of bilateral varicocele. Thus, it is not factually ascertainable that the Veteran had a bilateral varicocele disability related to his service-connected left inguinal hernia disability prior to October 20, 2010. Moreover, prior to the October 20, 2010, VA examination, there were no communications or actions evidencing intent to apply for, or a belief in entitlement to service connection for a bilateral varicocele disability. The Veteran's earlier complaints of bilateral varicocele are not sufficient to establish factual entitlement absent a diagnosis or pathology, nor does it constitute an earlier informal claim for service connection. Treatment records do not constitute informal claims when service connection has not yet been established for the condition. See 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002). While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Because a bilateral varicocele disability was identified at the time of an October 20, 2010, examination, without prior evidence of a diagnosed disability of bilateral varicocele secondary the service-connected left inguinal hernia, October 20, 2010, is the earliest factually ascertainable date that the Veteran was entitled to service connection. Thus, based on the evidence of record, an earlier effective date for the award of service connection for bilateral varicocele is denied. Earlier Effective Date for SMC The Veteran contends that he is entitled to an effective date prior to October 20, 2010, for the award of SMC due to loss of creative organ. He has not put forth any specific contentions as to why he is entitled to an earlier effective date. The current effective date for grant of SMC based on loss of a creative organ is October 20, 2010, which corresponds to the date of the VA examination report that showed that the Veteran was diagnosed with erectile dysfunction (ED), prescription for oral medication for the condition, and loss of use of a creative organ was noted for the first time. Generally, the effective date of an evaluation and award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114, 38 C.F.R. § 3.350. However, such compensation is subject to the general provisions relative to the effective date of disability compensation noted above. For claims filed prior to March 24, 2015, the Board is required to review all the communications in the file that could be interpreted to be a claim for benefits. A claim is defined as a formal or informal written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Any communication or action from a claimant indicating intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). In December 2002, the Veteran submitted a statement in support of claim, requesting entitlement to SMC based on loss of a creative organ. He reported that his service-connected left inguinal hernia condition required medication which caused him to experience ED. In support of his claim, he submitted VA treating notes dated November 2002 diagnosing him with ED and prescribing oral medication for the condition. Next, in a June 2003 rating decision, the RO granted service connection for ED as secondary to the service-connected left inguinal hernia effective November 1, 2002, the date of treatment factually showing a diagnosis of ED and was accepted as an informal claim for increase as this condition was secondary condition to the Veteran's service-connected post-operative left inguinal hernia. The June 2003 rating decision denied the claim for SMC based on loss of a creative organ, finding that although the Veteran's treatment records, and VA examination showed that he was diagnosed with ED, the evidence showed that the condition was intermittent, and that he was able to achieve an erection with penetration on some occasions so that total loss of a creative organ was not shown. The Veteran was informed of the decision and his appellate rights in a June 2003 letter, but he did not appeal the decision or submit new and material evidence within one year of the issuance of the decision. Next, in an October 2010 VA examination, the examiner noted that the Veteran had been diagnosed with ED and prescribed medication. In December 2011, the RO granted SMC based on loss of use of a creative organ, effective October 20, 2010, the date of the VA examination showing that the Veteran was diagnosed with ED, prescribed medication, and loss of use of a creative organ was first shown. Based on the foregoing, the evidence reveals that an informal claim for ED and SMC for loss of use of a creative organ was received on November 1, 2002, date of treatment factually showing a diagnosis of ED and an informal claim for increase as this condition was a secondary condition to the service-connected post-operative left inguinal hernia. In this case, loss of use of a creative organ was not shown until an October 2010 VA examination when the examiner determined that the Veteran had ED, was prescribed medication, and loss of use of a creative organ was noted. As this is later than the November 1, 2002, date of claim, the proper effective date is October 20, 2010. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.