Citation Nr: 21075769 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-33 024 DATE: December 21, 2021 ORDER Entitlement to a 30 percent evaluation for service-connected chronic left epididymitis is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The service-connected chronic left epididymitis is manifested by requiring continuous intensive management. CONCLUSION OF LAW The criteria for entitlement to a 30 percent evaluation for service-connected chronic left epididymitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7599-7525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to October 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). These issues were previously before the Board in March 2019 and September 2021, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to a 30 percent evaluation for service-connected chronic left epididymitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, the Veteran filed for an increased rating claim in July 2012. Accordingly, the relevant time period for consideration is from July 2011. The Veteran's service-connected chronic left epididymitis is rated under DC 7599-7525. 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. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: the first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27 (2019). There are no specific diagnostic criteria for epididymitis; thus, the condition must be rated under an analogous diagnostic code. See 38 C.F.R. §§ 4.20 and 4.27. Diagnostic Code 7525 instructs that chronic epididymo-orchitis is to be rated as a urinary tract infection; a 10 percent rating is warranted for long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. See 38 C.F.R. § 4.115a. A 30 percent rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) and/or requiring continuous intensive management. Id. For any higher rating, there must be manifestation of "poor renal function" under the criteria for renal dysfunction, which in turn will provide evaluations at noncompensable, 30, 60, 80, and 100 percent. 38 C.F.R. § 4.115a. Evidence The Veteran asserts that they are entitled to a higher evaluation due to the great pain and discomfort that the chronic left epididymitis causes. September 2011 VA treatment records note that the Veteran is prescribed hydrocodone for testicular pain, and that an ultrasound confirmed no testicular torsion. July 2012 VA treatment records indicate that the Veteran was instructed to take hydrocodone three times daily, to begin taking ciprofloxacin, an anti-inflammatory medication, and to wear a supporter. August 2012 VA treatment records note the Veteran's assertion that they take antibiotics about four times a year for testicular pain. The Veteran underwent a VA examination in May 2013. The examiner noted that the Veteran's treatment plan did not include continuous medication for the diagnosed condition. The examiner also found that the Veteran did not have any renal or voiding dysfunction. While erectile dysfunction was noted on examination, it was found to be associated with non-service-connected diabetes. The examiner also found that the left epididymis was tender to palpation. In a July 2013 statement, the Veteran asserted that in order to relieve the epididymitis symptoms, they take pain medication, antibiotics, and anti-inflammatory drugs, undergo ultrasounds and other testing, use proper equipment, and rest. The Veteran explained that rest is the best treatment, and that it can take days or weeks to recover from flare-ups. They also stated that the scrotal support that they must wear daily is uncomfortable and wears out quickly. The Veteran underwent a VA examination in March 2014, which found no changes in the condition compared to the May 2013 examination. In May 2014, the Veteran submitted three separate buddy statements. The first stated that during a flare-up of testicular pain, the only comfortable position for the Veteran is horizontal, and that even with medication, they lay in bed for days. The second stated that the Veteran is in great pain, and can be in bed for days on end. And the third stated that the Veteran is in complete and utter discomfort, and that they have no ability to help themselves, and are unable to complete day to day tasks. In a March 2015 statement, the Veteran asserted that the testicular pain has increased over the years, and that when in great pain, they are unable to walk. The Veteran underwent a VA examination in January 2016 where they reported having pain if in a static position for two hours, or if they walk very far. The Veteran described the pain as achy in quality and constant, but is increased with activity or static posture until standing to move around. The Veteran also stated that the pain wakens them from sleep. They described occasional flare-ups with significant pain, and uses ice packs and rest for a couple of days. The Veteran also reported wearing copper infused supportive underwear. The examiner noted that the Veteran's treatment plan includes taking continuous medication, which includes slow-release morphine sulfate for the pain. The examiner found that the Veteran did not have renal or voiding dysfunction. While erectile dysfunction was found on examination, it was noted as associated with non-service-connected diabetes. The examiner also found that the left testicle was tender to palpation. The March 2019 Board remand instructed the RO to schedule the Veteran for an examination to determine the current severity of the service-connected epididymitis as the Veteran had asserted an increase in symptoms. The RO obtained Male Reproductive System Conditions Disability Benefits Questionnaire based on a review of the available records in October 2019. The examiner noted that the Veteran's treatment plan does not include taking continuous medication, and that there was no renal or voiding dysfunction. While erectile dysfunction was found on examination, it was noted as associated with non-service-connected diabetes, coronary artery disease, and hypertension. The Veteran underwent a new VA examination in September 2021 where the Veteran described chronic, sharp, achy, constant left epididymal area pain of a 7 or 8 out of 10 severity. The Veteran asserted flare-ups of pain at a 9 or 10 out of 10 severity occurring 2 to 3 times per year, lasting approximately 4 days, leading to bed rest due to pain and swelling. Pain was noted as exacerbated by activities of prolonged sitting, prolonged walking, prolonged standing, repetitive lifting or carrying of heavy items, and sleeping in the wrong position, which causes occasional nighttime awakening to reposition the genital area to relieve pain. The examiner noted relieving factors of rest, activity avoidance, repositioning of the genital area, and pain medication. The examiner described the chronic left epididymitis as moderately severe. The Veteran's treatment plan was noted as including taking continuous medication, including non-steroidal anti-inflammatory drugs, Motrin, aspirin, and Tylenol. There was no renal or voiding dysfunction found on examination. Erectile dysfunction was found with an etiology of the chronic left epididymitis, and service connection was granted in an April 2020 rating decision, effective the date of this examination. Analysis Based on these findings, a 30 percent evaluation is warranted based on requiring intensive management, and the claim for an increased rating is granted. While the May 2013, March 2014, and October 2019 VA examinations noted that the Veteran does not take continuous medication, this is contradicted by the VA treatment records which repeatedly note that the Veteran is prescribed medication for the testicular pain and discomfort. These findings were corroborated by the January 2016 and September 2021 VA examinations which did find that the Veteran does take continuous medication for the condition. Further, the October 2019 VA examination was not conducted in person, but rather merely based on a review of the available record, and that examiner did not explain their contradictory findings compared to the January 2016 examination, which was the most recent at the time. Of note are the reports of flare-ups which leave the Veteran bedridden for several days, up to four times a year, where the Veteran is unable to move due to the pain, and unable to perform any activities of daily living. This was reported in statements from the Veteran and several buddy statements, as well as January 2016 and September 2021 VA examinations. Based on the numerous medications prescribed, the wearing of supportive undergarments, and the reports of flare-ups, the Board finds the requirement of continuous intensive management to be fulfilled. However, without signs and symptoms of renal dysfunction showing constant albuminuria with some edema; or definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101, a next higher evaluation of 60 percent under the criteria for renal dysfunction is not available. There are no findings of even greater dysfunction, such as persistent edema or dialysis, warranting 80 percent and 100 percent evaluations. While the Board has considered all diagnostic criteria potentially associated with the genitourinary system, there is no basis upon which a schedular evaluation in excess of 30 percent can be assigned. The Board notes that the Veteran has also repeatedly asserted that they have back pain secondary to the chronic left epididymitis; however, service connection for a back disability secondary to the service-connected chronic left epididymitis was denied in the March 2019 Board decision that first remanded these issues herein. The Board acknowledges that the Veteran has indicated that an even higher disability rating is warranted. The Board acknowledges this, and the Veteran, as a lay person, is competent to report observable symptoms because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). They are not, however, competent to identify a specific level of disability relating such to the appropriate Diagnostic Code. The Board finds that the question of the severity of the epididymitis is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, to the extent that the Veteran alleges greater severity, the Board finds that the probative value of the allegations is outweighed by the aforementioned examiners' findings. According, the Board finds that an evaluation of 30 percent for service-connected chronic left epididymitis is warranted, and the claim is granted. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran has asserted that they are unable to work due to their service-connected chronic left epididymitis. A TDIU may be assigned, where the schedular rating is less than total, where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. An award of TDIU is an individualized determination, specific to a Veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Service connection is in effect for the following disabilities: 1) chronic left epididymitis with a 30 percent evaluation; 2) condyloma accuminata with a noncompensable evaluation; and 3) erectile dysfunction with a noncompensable evaluation. Accordingly, the Veteran does not meet the schedular requirements for a TDIU. Under 38 C.F.R. § 4.16(b), where the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims held that the Board cannot award TDIU under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. On their June 2014 TDIU application, the Veteran reported that they previously worked in truck driving and distribution, leaving their last position in July 2011 due to the service-connected chronic left epididymitis. On a December 2015 Request for Employment Information, the Veteran's former employer noted that they Veteran was laid off from their warehouse position in July 2010. The May 2013, March 2014, and October 2019 VA examiners opined that the chronic epididymitis had no functional impact on the Veteran's employability. The January 2016 examiner opined that there would be a functional impact, and explained that the Veteran has pain managed with moving after prolonged static posture, but otherwise would not have any interference with an ability to function. The September 2021 examiner also found functional impact on the ability to work. The examiner explained that the related symptoms limit the ability to perform occupational tasks of prolonged standing, prolonged walking, prolonged sitting, performing any type of running, or performing repetitive lifting or carrying of heavy items or doing activities of prolonged sleeping due to pain. The Veteran has not asserted that their other service-connected disabilities contribute to their unemployability, and the record does not otherwise indicate such a finding. The Board notes that the Veteran is currently in receipt of disability benefits from the Social Security Administration for non-service-connected disabilities. As the record suggests that the Veteran cannot work due to symptomatology associated with the service-connected chronic left epididymitis, the Veteran's claim for TDIU must therefore be remanded and referred to VA's Director, Compensation Service for extraschedular consideration, as the Board cannot make such a determination in the first instance. 38 C.F.R. § 4.16(b). By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. (Continued on the next page) The matters are REMANDED for the following action: Refer the matter of entitlement to TDIU to the Director, Compensation Service, for a determination in the first instance as to whether the assignment of a TDIU rating is warranted on an extraschedular basis. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.