Citation Nr: 21005799 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 08-24 200 DATE: February 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for epididymitis with bilateral epididymal cysts is denied. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran’s epididymitis with bilateral epididymal cysts has been manifested by testicular pain with tenderness, but the disability did not manifest in or more nearly approximate long-term drug therapy, hospitalizations, or intermittent intensive management, nor displayed urinary symptoms, impairment of the Veteran’s renal function, or recurrent symptomatic infection requiring drainage.. 2. The Veteran’s service-connected disabilities did not preclude all substantially gainful employment for which his education and occupational experience would otherwise have qualified him. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for epididymitis with bilateral epididymal cysts have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code (DC) 7525. 2. The criteria for a TDIU were not met on a schedular basis and referral for extra-schedular consideration is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. The Veteran testified at a July 2018 video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in August 2019 and March 2020 for additional development. It now returns for further appellate review. 1. Increased Rating The Veteran contends he is entitled to a higher rating for his service-connected epididymitis with bilateral epididymal cysts than the currently assigned 10 percent rating. See February 2017 VA Form 9. Specifically, the Veteran stated “[f]or 48 years I have been in chronic pain as a result of my testicle injury.” Id. Legal Criteria The Veteran’s service-connected epididymitis with bilateral epididymal cysts is evaluated under DC 7525. Pursuant to DC 7525, chronic epididymo-orchitis is rated as a urinary tract infection. 38 C.F.R. § 4.115b, DC 7525. Under 38 C.F.R. § 4.115a, evidence that a urinary tract infection requires long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management will result in the assignment of a 10 percent disability evaluation. The next higher rating of 30 percent requires evidence of either poor renal function or evidence of recurrent symptomatic infection requiring drainage, frequent hospitalization (greater than two times per year), and/or continuous intensive management. Id. Factual Background The Veteran filed a claim for increase in October 2015. See October 2015 VA Form 526EZ. As such, the relevant period on appeal is from October 29, 2015 to the present. The Veteran’s VA treatment records during the appeal period reflect diagnosis of chronic epididymo-Orchitis. The impression from the January 2015 ultrasound was bilateral epididymal cysts. See January 2015 VA Ultrasound Report in CAPRI received January 2017. The Veteran’s chronic epididymo-Orchitis was noted as stable with no symptoms during a December 2015 VA outpatient visit. See December 2015 VA Outpatient Note in CAPRI received January 2017. During the March 2016 urology follow up for pain, the urologist noted no recent infections. See March 2016 VA Urology Note in CAPRI received January 2017. The Veteran was provided a VA examination in January 2016 in connection with his claim. See January 2016 VA Male Reproductive Disability Benefits Questionnaire (DBQ). The examiner confirmed the Veteran’s diagnosis of chronic epididymitis and erectile dysfunction (ED). He also found that the Veteran’s epididymitis was not treated with continuous medication. The Veteran had not undergone an orchiectomy and did not have renal or voiding dysfunction. Id. On physical examination, the Veteran’s epididymis was abnormal, and the examiner noted that the Veteran’s left epididymis was tender to palpation. Regarding the occupational impact of the Veteran’s epididymitis the examiner stated that he would not recommend “[p]hysically demanding work i.e. construction…. With respect to this condition alone employment with restrictions is still possible.” Id. The Veteran testified at the July 2018 Board hearing that his epididymitis has resulted in chronic pain and inflammation for more than 40 years. See Hearing Transcript. The Board remanded the claim in November 2018 to address whether the Veteran had urinary tract infections. See November 2018 Board Remand. Consequently, he was provided a VA examination in May 2019. See May 2019 VA Male Reproductive System Conditions DBQ. The Veteran reported episodic pain to his left epididymis region. The Veteran’s treatment plan did not include taking continuous medication for his condition. However, he periodically used ibuprofen and antibiotics. Id. The Veteran did not have renal or voiding dysfunction. The Veteran noted that his testicular pain was aggravated by walking and relieved by sitting. He describes his pain as severe, sharp, and localized in the left testicle which radiates to the groin or suprapubic area. Id. The VA obtained an addendum opinion from the May 2019 VA examiner regarding the Veteran’s genitourinary conditions in September 2019. See September 2019 VA Addendum DBQ. The examiner explained that there was no basis for the Veteran’s 2007 diagnosis of tuberculosis of testitis and confirmed the Veteran’s diagnosis is chronic epididymitis. The Board remanded the claim again in March 2020 because the May 2019 VA examination report did not address urinary tract infections. See March 2020 Board Remand. Pursuant to the March 2020 Board remand, the Veteran was provided a VA examination in September 2020. See September 2020 VA Male Reproductive Organ Conditions DBQ. The examiner assessed the Veteran with ED, epididymitis with bilateral epididymal cysts and voiding dysfunction. Id. The Veteran endorsed chronic testicular pain for more than 45 years. He rated the severity of his pain as level 7 out of 10, and noted his pain radiates from left groin to naval. The Veteran treats his pain with Tylenol as need, as well as with exercise and ice/heat. He also noted that he began pain management treatment and was awaiting a TENS unit and or physical therapy/injections. The examiner noted that the Veteran’s epididymitis did not result in renal dysfunction. However, the Veteran had a voiding dysfunction related to benign prostatic hyperplasia (BPH). In her remarks, the examiner also stated “[v]oiding dysfunction is due to BPH which is common in males over age 40 and is unrelated to service-connected conditions.” Additionally, the examiner noted that the Veteran reported leakage if he was unable to get to the bathroom, but that the leakage was not severe enough to require wearing absorbent material or use of an appliance. Id. The Veteran’s voiding dysfunction caused increased urinary frequency to including daytime voiding interval less than one (1) hour and nighttime awakening to void five (5) or more times. Id. The examiner also noted voiding dysfunction caused symptoms of obstructed voiding including hesitancy, slow stream, and decreased force of stream. The examiner found that the Veteran did not have a history of chronic epididymitis, epididymo-orchitis, or prostatitis. The examiner stated that the Veteran’s bilateral epididymal cysts were asymptomatic. Id. She noted that the Veteran’s epididymitis would cause him to miss work during flare-ups with severe pain. Regarding urinary tract infections, the examiner stated that “[c]hronic epididymitis, is chronic inflammation of the epididymis, a male sex organ and is not a urinary tract infection.” Id. She also noted that the Veteran’s epididymitis was non-infectious and has waxed and waned for more than 30 years. Based on review of the relevant treatment records, the examiner further stated that the “[V]eteran has chronic epididymitis with no evidence of recurrent urinary tract infections.” In August 2020, the Veteran was seen by VA pain management for complaints of chronic of testicular pain. See August 2020 VA Pain Interventional Consult Note in CAPRI received September 2020. He rated his pain on average as a level 6, and at maximum of 10. He denied urinary retention and declined additional medication or injections for his condition. On physical examination, the Veteran’s left testicle was normal, but physician noted tenderness to palpation along the inguinal area. The physician also noted a July 2019 ultrasound reflected findings consistent with old inflammatory process. He assessed the Veteran with left testicle pain and stated it may be rated to ilioinguinal or genitofemoral neuralgia. Id. He was prescribed a Lidocaine patch, and an ultrasound guided nerve block and neuropathic medication was deferred for two-month follow up. Analysis Based on a thorough review of the record from the period on appeal, including the evidence described above, the Board finds that the Veteran’s symptoms associated his service-connected epididymitis disability more closely parallel the type of symptoms described in the criteria for the currently assigned 10 percent disability rating. The Veteran’s primary symptom of his service-connected epididymitis is pain, which has been treated throughout the appeal period with over-the-counter medications and antibiotics. These findings warrant a 10 percent rating under DC 7525. A higher rating of 30 percent or more is not warranted for the period on appeal, as the Veteran’s epididymitis has not resulted in recurrent symptomatic infection requiring drainage and/or frequent hospitalization (greater than two times a year) and/or requiring continuous intensive management. Notably, the September 2020 VA examiner found “no evidence of recurrent urinary tract infections” associated with the Veteran’s service-connected epididymitis. See September 2020 VA Male Reproductive Organ Conditions DBQ. The Board also notes that the claims file and evidence discussed above does not reflect any evidence of urinary tract infections. See i.e. March 2016 VA Urology Note in CAPRI received January 2017(denying recent infection). Additionally, the Veteran has not exhibited poor renal function related to his epididymitis disability. 38 C.F.R. §§ 4.155a, 4.115b, DC 7525. Moreover, DC 7525 provides that tubercular infections are rated in accordance with §§ 4.88b or 4.89, whichever is appropriate. However, the evidence in the present case does not reflect that the Veteran suffers from tubercular infections. Specifically, the September 2019 VA examiner clarified that the Veteran did not have tuberculosis of the testes. See September 2019 VA Addendum DBQ. The Board considered the Veteran’s voiding dysfunction and associated urinary frequency noted in the August 2020 VA examination report, but finds no basis to assign a higher rating. First, the August 2020 VA examiner opined that the Veteran’s voiding dysfunction was not related to his service-connected epididymitis. Secondly, urinary frequency is not one of the criteria which is used to evaluate the severity of chronic epididymitis. As DC 7525 specifically considers the Veteran’s diagnosed disability, chronic epididymitis, consideration of other DCs and ratings by analogy is not permitted. See Copeland v. McDonald, 27 Vet. App. 333 (2015). There is no other diagnostic code pertaining to the Veteran’s service-connected disability which could provide a higher disability rating. The Board has considered other diagnostic codes, including 38 C.F.R. § 4.124a, Diagnostic Codes 8530, 8630, 8730 and 8540 pertaining to the August 2020 VA treatment record indicating ilio-inguinal nerve involvement. However, there are no clinical findings of soft-tissue sarcoma, which must be present for a rating in excess of 10 percent. Without any medical evidence of greater impairment for the period of the appeal, the claim must be denied. See 38 C.F.R. § 4.7. The Board has carefully reviewed the Veteran’s general statements and his lay statements regarding his chronic pain and that his epididymitis disability warrants a higher disability rating in excess of 10 percent. His statements regarding his symptoms are competent and credible and have been considered in the medical records of which this determination has been based. Indeed, the Board finds the reports of VA examiners from January 2016, May 2019, September 2019, and September 2020 to be probative evidence of record concerning whether the Veteran’s epididymitis disability has worsened enough to warrant a higher disability rating. The VA examiners’ rationales are logical and well-reasoned and based on consideration of the Veteran’s claims file, medical treatment records, and reported history, which includes his general and lay statements. Thus, the Board is satisfied that the January 2016, May 2019, September 2019, and September 2020 VA examiners’ opinions are competent, credible, persuasive, and probative for deciding this appeal. Therefore, based on the above, the Veteran’s claim of entitlement to a rating in excess of 10 percent for an epididymitis disability must be denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.21, 38 C.F.R. §§ 4.155a, 4.115b, DC 7599-7525. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim for a rating in excess of 10 percent for his service-connected epididymitis with bilateral epididymal cysts is denied. 2. Entitlement to a TDIU The Veteran contends that his service-connected disabilities preclude him from securing or following substantially gainful employment. Where the schedular rating is less than total, a TDIU may be assigned when it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment is not considered substantially gainful employment. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. During the period on appeal, the Veteran was service connected for the following disabilities: chronic left epididymitis with bilateral epididymal cysts rated as 10 percent disabling, and ED rated non-compensable. See September 2020 Rating Codesheet. His combined rating was10 percent and none of the exceptions in 38 C.F.R. § 4.16 (a)(1)-(5) (disabilities of extremities, common etiology, single body system, incurred in action, or prisoner of war) are for application. Thus, the Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), and his claim is denied based on 4.16(a). However, that is not the end of the inquiry. TDIU can still be established whenever service-connected disabilities cause unemployability pursuant to 38 C.F.R. § 4.16 (b), but the Board is precluded from awarding a TDIU under 38 C.F.R. § 4.16 (b) without first referring the matter to the Director, Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the issue before the Board is whether a remand for referral for extra-schedular consideration for TDIU is warranted. The initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Turning to the evidence of record, in his formal application for TDIU the Veteran asserts that he last worked as an instructor at Kaplan careers in July 2014. See October 2015 VA Form 21-8940. He reports that he completed three years of college education. He further states that he is no longer able to work due to chronic left epididymitis, ED, right knee arthritis, right hip arthritis, PTSD, left hip arthritis, and left knee arthritis. Id. In a statement in support of claim dated January 2014, the Veteran stated “I have severe arthritis hips and knees. My mobility has been impaired, preventing me from working….” See January 2014 VA Form 21-4138. A VA vocational rehabilitation counseling report from April 2015, indicates that the Veteran was currently unemployed but was attending educational training in computer networking on a full-time basis. See April 2015 VA Vocational Rehabilitation Counseling Report. The Veteran reported “his primary current physical issues(s) continue to be his (r) right hip and (l) left knee at this time.” Id. The Veteran continued to endorse problems with his right hip and left knee in subsequent VA vocational rehabilitation counseling sessions from April 2015 through October 2015. In December 2015, the Veteran applied for authorization from the VA vocational rehabilitation counselor to obtain an associate’s degree in computer networking hardware from January 2016 to January 2017. See VA Form 28-1905. The Veteran submitted another VA Form 21-8940 in May 2020. See May 2020 VA Form 21-8940. He noted that he was last employed as an engineer at Amtrak from September 2004 to June 2007. Id. He also asserted he lost three months of work due to illness. He stated the he was unable to work due to his chronic epididymitis specifically stating, “I am totally restricted because of chronic abdomen, testicle pain and both hips are inflamed.” Id. A representative from the Veteran’s former employer Kaplan responded to a request for the Veteran’s employment information in March 2016. See March 2016 VA Form 21-4192. The employer confirmed that the Veteran worked at Kaplan from November 2011 to July 2014. The reason for terminating his employment was that the Veteran “could not concentrate too depressed[,] too much pain.” Id. The VA attempted to obtain Social Security Administration records but was informed no medical records existed for the Veteran. Based on the above-cited evidence, the Board finds that the weight of the evidence fails to establish that the Veteran’s service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. While the Veteran’s service-connected genitourinary disabilities cause some functional impairment including pain, the evidence of record does not demonstrate they have risen to the level that he is unable to secure or follow any substantially gainful employment in light of his education and occupational experience. In fact, the evidence of record suggests that his service-connected conditions limit the Veteran from working in physically demanding jobs and/or interfered with his ability to work. Specifically, the January 2016 VA examiner opined that the Veteran would likely be unable to do “[p]hysically demanding work i.e. construction … [but] employment with restrictions is still possible.” See January 2016 VA Male Reproductive DBQ. The May 2019 VA examiner noted that the Veteran was retired but reported that he took off time to work because pain lasted two to three days. See May 2019 VA Male Reproductive System Conditions DBQ. The September 2020 VA examiner also noted that the Veteran’s flare-ups and severity of pain could cause him to miss work.” See September 2020 VA Male Reproductive Organ Conditions DBQ. However, the Board finds that this evidence does not tend to suggest that the Veteran was precluded from performing the mental and/or physical acts required to obtain and retain substantially gainful employment due to his service-connected disabilities alone. Interference with employment is not the equivalent of precluding employment because while his service-connected disabilities prevented manual or heavy work and resulted in taking time off, he was not rendered unable to work because of those disabilities. Importantly, none of the VA examiners opined that the Veteran was precluded from engaging in substantially gainful employment due to his ED and/or chronic left epididymitis with bilateral epididymal cysts. In fact, the January 2016 VA examiner opined that “employment with restrictions is still possible.” See January 2016 VA Male Reproductive DBQ. Notably, during his VA vocational rehabilitation counseling sessions in 2015 the Veteran reported that his primary physical problems were his right hip and left knee conditions. There was no mention of any occupational impact resulting from his genitourinary disabilities. Moreover, in January 2014, the Veteran reported his “severe arthritis hips and knees [were] preventing me from working….” See January 2014 VA Form 21-4138 Form. Conversely, the record demonstrates that he was unable to work due to other non-service-connected disabilities including hip, knee, and acquired psychiatric disabilities. See January 2014 VA Form 21-4138 Form (stating right hip and left knee prevent Veteran from working); see also May 2019 VA Mental Disorders DBQ (noting Veteran stopped working as an instructor “when he chose to quit because of ‘too many issues, anxiety, stress…”). However, these conditions are not service connected and thereby are not considered relevant for the determination of whether or not a TDIU is warranted. (Neither non-service-connected disabilities nor advancing age may be considered for a TDIU. 38 C.F.R. § 4.19.) As such, the Board finds that the evidence of record fails to demonstrate that he is precluded from in engaging in substantially gainful employment solely due to his service-connected disabilities. Therefore, the preponderance of the evidence reflects that the functional impairment from the Veteran’s service-connected disabilities has not been shown to be so severe as to preclude substantially gainful employment. Thus, the record does not contain sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. Accordingly, the procedures for referring this matter for extraschedular consideration are not met, and referral for extraschedular TDIU consideration is not warranted at this time, and the claim for TDIU is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate 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.