Citation Nr: 21075264 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 01-07 066A DATE: December 20, 2021 ORDER Entitlement to a 30 percent disability rating for post-operative epididymectomy of the left testicle, with chronic epididymitis, status post orchiectomy is granted, subject to regulations governing the payment of monetary awards. FINDING OF FACT Resolving reasonable doubt in the appellant's favor, the Veteran's service-connected left testicle was removed and during the pendency of the appeal, his right testicle was shown to be nonfunctioning. CONCLUSION OF LAW The criteria for a 30 percent rating for service-connected post-operative epididymectomy of the left testicle, with chronic epididymitis, status post orchiectomy, with a nonfunctioning right testicle have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.115b, Diagnostic Code (DC) 7524 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1952 to July 1954. He died in April 2020 and the appellant is the Veteran's surviving spouse and has been substituted as the claimant in this issue. This matter is on appeal of an April 2001 rating decision. In February 2007, the Board initially denied the Veteran's claim for an increased disability rating. The Veteran appealed the February 2007 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2008, the Court granted a Joint Motion for Remand (JMR) by the Veteran's representative and the VA General Counsel. The Board remanded the appeal for further development in April 2009, April 2016 and January 2018. In December 2018, the Board again denied the claim for an increased disability rating. The Veteran appealed the December 2018 Board decision to the Court. In an August 2020 memorandum decision, the Court set aside the December 2018 Board decision and remanded the matter for further development and readjudication. The Board again remanded the appeal for further development in May 2021. The appellant and her attorney contend that the Veteran was entitled to a higher disability rating than the 10 percent rating assigned for his service-connected post-operative epididymectomy of the left testicle, with chronic epididymitis, status post orchiectomy. They contend that the Veteran's right testicle was nonfunctioning in accordance with rating criteria for a 30 percent disability rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. 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 may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," which are appropriate for any rating claim when the factual findings show distinct time periods during the appeal where the disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's post-operative epididymectomy of the left testicle, with chronic epididymitis, status post orchiectomy was rated 10 percent disabling since 1991 under the prior rating criteria of DC 7524 in effect in 1991. Under the current rating criteria for DC 7524, a noncompensable rating is assigned for removal of one testis. 38 C.F.R. § 4.115b, DC 7524. A maximum 30 percent rating is assigned for removal of both testes. Id. The note under DC 7524 states that, in cases of removal of one testis as a result of service, with absence or nonfunctioning of the other testis unrelated to service, a rating of 30 percent will be assigned for the service-connected testicular loss. Id. The evidence of record shows that the Veteran underwent a left orchiectomy in 1991, for which service connection was granted. There is no evidence in the record that the Veteran had both testes removed, nor has the appellant argued this. However, as noted above, a 30 percent disability rating is warranted should the evidence indicate that his right testis was nonfunctioning. November 2000, August 2002, June 2004, April 2008, and May 2009 VA examinations of the Veteran's right testicle indicated it was normal or that it was normal in size. A January 2010 VA examination report shows that a seminal fluid sample was unsuitable and that a provided sperm count was estimated. It was indicated that many sperm were present in the sample. Lab results also showed that the Veteran had low testosterone levels. The examiner found that, after conducting testosterone and semen studies, as well as a scrotal ultrasound that the Veteran's right testicle was normal in size, shape, and function. In a February 2010 addendum, the VA examiner opined that the Veteran had a normal and functional right testicle without any accompanying rationale. An August 2012 VA examiner also noted that the Veteran's right testicle was normal in size and echotexture. The examiner opined that the test results from the prior January 2010 VA examination indicated normal function in the right testicle and concurred with the earlier January 2010 VA examiner's opinion that the Veteran's right testicle was normal in size, shape, and function. However, a November 2014 VA addendum opinion indicates that the right testis was non-functioning based on the testosterone levels. Likewise, a July 2018 VA examiner noted that the fact that the Veteran's right testicle was not atrophic, was normal in size and consistency suggested that it was functional, but that the low testosterone levels since 2004 indicated that it was only partially functional. Finally, in a May 2021 retrospective opinion, a VA physician opined that evidence of the underproduction of testosterone beginning in 1992 revealed that the Veteran's right testicle was functional at a subnormal level. The examiner indicates that low testosterone levels at the time of the July 2018 examination was compatible with an underproduction of testosterone and would be defined as primary hypogonadism. Throughout the appellate period, in compliance with the Court's instructions, the Board frequently requested a medical definition as to what constitutes a nonfunctioning versus functioning testis, in addition to an opinion as to whether the Veteran's right testis was currently functional or nonfunctional. While the various VA medical opinions did address whether the Veteran's right testicle was functional or nonfunctional, and addressed its origins, a definition of what constitutes nonfunctioning versus functioning testis was never provided. However, it is clear from the November 2014, July 2018, and May 2021 VA opinions that the Veteran's low testosterone levels as early as 1992, indicate that his right testicle was only partially functioning, functioning at a subnormal level or was non-functioning. Thus, with resolution of doubt in the appellant's favor, the Board finds that a 30 percent rating for the removal of the Veteran's left testicle and the nonfunctioning of his right testicle is warranted during the pendency of the appeal under DC 7524. The Board notes that certain reproductive impairment is compensated by special monthly compensation (SMC) at the statutory rate for loss of use of a creative organ set forth in 38 U.S.C. § 1114(k). The record shows that SMC has already been awarded from March 7, 1991, the date of the Veteran's original claim for service connection for his left testis disability, so entitlement to that benefit need not be addressed further. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.