Citation Nr: 21006011 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-29 981 DATE: February 3, 2021 ORDER Entitlement to an initial compensable rating for testis removal, one, with scars is denied. FINDING OF FACT Testis removal, one, with scars, is manifested by not more than three well-healed non-painful and not unstable or functionally limiting scars in the right groin area, one measuring 2.4 cm x 0.1 cm on the superior abdomen, one measuring 3.5 cm x 0.2 cm on the inferior abdomen and the other, medically characterized most recently as not noticeable, on the right mons pubis. CONCLUSION OF LAW The criteria for an initial compensable rating for testis removal, one, with scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.31, 4.115B, Diagnostic Code 7524, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1982. He appeals a July 2013 decision. A videoconference hearing in this matter was held in July 2018 before the undersigned Veterans Law Judge. The transcript is of record. During the hearing, the VLJ clarified the issue, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. The Board remanded the claim in January 2019 for a new examination to determine the number of painful scars the Veteran has which are attributable to his orchiectomy, as an examination report submitted by the Veteran indicating painful scars did not clearly indicate the number of painful scars due to the orchiectomy. Examination was accomplished on remand. Also on remand, the Agency of Original Jurisdiction (AOJ) granted service connection for right ilio-inguinal nerve damage but denied the issue as to a compensable rating for testis removal, one, with scars. See November 2020 rating decision and Supplemental Statements of the Case (SSOC). We note that entitlement to special monthly compensation under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350 (a) on account of anatomical loss of a creative organ is also in effect. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 Separate ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 Entitlement to an initial compensable rating for testis removal, one, with scars is denied. The Veteran seeks a compensable rating for this disability, which is rated noncompensable from July 31, 2007 under Diagnostic Code (DC) 7524 testis removal, one, using the Ratings of the Genitourinary System – Diagnoses, and under DC 7805 for scars of the using the Schedule of Ratings – Skin. 38 C.F.R. § 4.118. Under DC 7524, removal of one testis is rated noncompensable. Under DC 7805, the noncompensable rating is based on one or more linear scars that are otherwise non painful, not unstable, not functionally impairing and measure as follows: (1) 2.4 cm x 0.1 cm on the superior abdomen, (2) 3.5 cm x 0.2 cm on the inferior abdomen and (3) not noticeable and on the right mons pubis, with the total area of all related scars less than 39 square cm (6 square inches). Under DC 7524, testis removal, one, is rated noncompensable, while testis removal, both, is rated 30 percent disabling. Here, we note that the Veteran is recorded as having had right orchiectomy in August 1978 in service for congenitally under-developed and undescended right testicle. The record also reflects that he went to another doctor in 2006 because he developed right groin scar and nerve pain and numbness in the area. The doctor told him his testicle was not removed and then proceeded to remove it but the pain did not improve significantly. He had a CT scan that was normal as well which caused him to believe his pain may be nerve related. He has repeatedly stated that the manifestation of the disability is pain in the right groin like a dull toothache. See October 2019 and November 2020 VA examinations, July 2018 BVA hearing. Thus, we noted that it is neither argued, suggested nor demonstrated that there is removal of both testes. It is uncontroverted that there is only one testis that was removed and there is no indication that the other testis is absent. The examiner in October 2019, for male reproductive systems, found that the left testicle was normal. Accordingly, a higher rating under DC 7524 is not for application. Moreover, the examination, which was based on examination as well as review of the entire record, reflects no other relevant findings aside from one testis removal with scars and the pain attributed to the now service-connected ilio-inguinal nerve. The examiner found no related renal or voiding dysfunction or erectile dysfunction, chronic epididymitis, epididymo-orchitis or prostatitis, and normal epididymis. Thus, we conclude that the preponderance of the evidence is against a higher rating based on any of the potentially applicable genitourinary DCs. At this juncture, we emphasize that the Veteran’s complaint has been a dull toothache type pain in the right groin area under the skin that he believes is resultant nerve damage. See, e.g., his September 2020 statement. The November 2020 VA peripheral nerve conditions examination indeed yielded a diagnosis of ilio-inguinal nerve mild incomplete paralysis related to the testis removal. With the dull pain attributed to the ilio-inguinal nerve disability, and consideration of the pain under another DC would constitute pyramiding. See 38 C.F.R. § 4.14. Next, we address the scars that are part of the one testis removal disability. Scars, other than of the head, face, or neck, are evaluated under the provisions of 38 C.F.R. § 4.118, DCs 7801, 7802, 7804, and 7805. Effective August 13, 2018, some of the rating criteria for skin disabilities were revised. See 73 Fed. Reg. 32,592 (July 13, 2018). The criteria for DC 7804 were not affected. The revisions affected DCs 7801, 7802, and 7805. For appeals pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018. Prior to August 13, 2018, under DC 7801, a scar not of the head, face, or neck that is deep and nonlinear is rated as follows: a 10 percent rating is assigned for an area of at least 6 sq. inches (39 sq. cm) but less than 12 sq. inches (77 sq. cm); a 20 percent rating is assigned for an area of at least 12 sq. inches but less than 72 sq. inches (465 sq. cm); a 30 percent rating is assigned for an area of at least 72 sq. inches but less than 144 sq. inches (929 sq. cm); and a maximum 40 percent rating is assigned for an area of 144 sq. inches or greater. 38 C.F.R. § 4.118, DC 7801. A deep scar is one associated with underlying soft tissue damage. Id. at Note (1). Effective from August 13, 2018, the regulations replaced "deep and nonlinear" with "associated with underlying soft tissue damage" and updated the notes. Prior to August 13, 2018, under DC 7802, a maximum 10 percent rating is assigned for a superficial and nonlinear scar not of the head, face, or neck if it measures 144 sq. inches (929 sq. cm) or greater. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (1). Effective from August 13, 2018, the regulations replaced "superficial and nonlinear" with "not associated with underlying soft tissue damage" and updated the notes. DC 7804 assigns ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804. Under DC 7805, other disabling effects not considered under DCs 7800-7804 are rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. [Prior to August 13, 2018, the language "(including linear scars)" was used in this DC.] The most probative evidence of record is the October 2019 VA examination as it is thorough, clearly explained, based on a review of the record and not inconsistent with the treatment record. It shows three scars linear scars that are otherwise non painful, not unstable, not functionally impairing, and measure as follows: (1) 2.4 cm x 0.1 cm on the superior abdomen, (2) 3.5 cm x 0.2 cm on the inferior abdomen and (3) not noticeable and on the right mons pubis. Thus, the total area of all related scars less than 39 square cm (6 square inches). The examiner stated, none of the scars are not painful, all are very well healed with no hyper or hypo pigmentation noted and no underlying tissue involvement. We note that the Veteran has submitted an examination from August 2018 in which the examiner stated there were painful scars but did not give any appreciable description or number. This is considered to be of no actual probative weight. He also submitted a March 2019 scars DBQ filled out by a non-VA provider which lists multiple scars on multiple areas of the body and notes pain. The examiner does not indicate any review of the record and there are scars included in the report and the assessment that are not related to the testis removal, e.g., pilonidal cyst scar (already service-connected and unrelated to this disability), upper extremity scar. Also, the examiner notes that the Veteran reports his groin pain but the pain described has been attributed to the service-connected ilio-inguinal nerve incomplete paralysis. Ultimately, this examination is judged to be less probative than the October 2019 VA examination for male reproductive systems. Also, an April 2013 VA examination reflects three linear non-painful, not unstable scars associated with this condition, on the anterior trunk, measuring 3, 4 and 10 cm. Treatment records are not inconsistent with the October 2019 examination findings. The Board finds that a compensable rating is not warranted under Code 7805, or 7804, because the most probative evidence of record shows that the Veteran’s testis removal scars were not objectively tender, painful or unstable, nor productive of has any disabling effect. Nor are they of the size that would support a compensable rating. Thus, a compensable rating is not warranted, under these or any other potentially applicable diagnostic codes associated with scars and their residual effects. See 38 C.F.R. § 4.118. Accordingly, the Board finds that the Veteran’s current manifestations of the scars are consistent with the noncompensable rating assigned under Diagnostic Code 7805. Finally, we note that to the extent that the period on appeal may be seen as dating to July 31, 2007, the scar rating criteria were revised one time prior, but application of the former criteria would still not produce a compensable rating either. In pertinent part, prior to October 23, 2008, a 10 percent rating could be assigned under DC 7803 for superficial, unstable scars, or under DC 7804 for a superficial scar that was painful on examination. DC 7805 provided that scars, other, could be rated based on limitation of function of the affected part. Again, as there are no painful or unstable or functionally limiting scars, a compensable rating is not indicated under these criteria. The preponderance of the evidence is against the assignment of a compensable rating for this disability at any point during the period on appeal. No compensable rating criteria are more nearly approximated. The Veteran’s contentions are considered but are outweighed by the VA examination findings cited above, which are consistent with the treatment record. The most probative evidence establishes that he has scars that are not painful. Although he has pain in the area, such ahs been attributed to other cause, specifically not the scar. There is no reasonable doubt to resolve. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.