Citation Nr: 21007731 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 08-37 501 DATE: February 10, 2021 ORDER An initial rating higher than 10 percent for a left testicular cyst and varicocele is denied. REMANDED Entitlement to an initial rating higher than 10 percent for low back strain prior to August 14, 2012 is remanded. Entitlement to an initial rating higher than 20 percent for low back strain from August 14, 2012 is remanded. Service connection for a bilateral foot disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s left testicular cyst and varicocele are not manifested by persistent edema, voiding or renal dysfunction, or erectile dysfunction. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for a left testicular cyst and varicocele have not been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, 4.115a, 4.115b, Diagnostic Codes (DCs) 7120, 7529. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from August 1973 to August 1977 and had additional service in the Kansas Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision. It was previously remanded by the Board for additional development in February 2014, March 2016, November 2017 and January 2020. An initial rating higher than 10 percent for a left testicular cyst and varicocele Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s left testicular disability is currently rated at 10 percent under DC 7529-7120. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 7529 is found under 38 C.F.R. § 4.115b and addresses benign neoplasms of the genitourinary system. It rates disabilities based on the level of associated voiding dysfunction or renal dysfunction, whichever is greater. The criteria for voiding and renal dysfunction are located under 38 C.F.R. § 4.115a. However, the overall weight of the evidence is against finding that the Veteran’s testicular disability is manifested by any renal or voiding dysfunction. VA examiners in December 2012 and September 2020 both concluded that the Veteran’s voiding dysfunction was associated with his benign prostate hypertrophy and prostatitis. The September 2020 examiner explained that the Veteran’s testicular cyst and varicocele did not obstruct the structures associated with voiding or renal function. There is no competent evidence specifically linking any voiding or renal dysfunction to the service-connected testicular condition, and therefore a rating under DC 7529 is not warranted. DC 7120 is found under 38 C.F.R. § 4.104 and addresses varicose veins. A 10 percent rating is warranted for intermittent edema of the extremity, or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent rating is warranted for varicose veins manifested by persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A higher 20 percent rating is not warranted because persistent edema was not shown. The Veteran underwent VA examinations in September 2007, September 2009, August 2012, December 2012, June 2014, July 2018 and September 2020. Although the Veteran reported ongoing pain, no edema was shown. The July 2014 VA examination specifically noted that persistent edema was not present. The pain and tenderness present in the Veteran’s testicle are contemplated by the assigned 10 percent rating, which includes aching and fatigue in the affected area, but the lack of persistent edema means a higher 20 percent rating is not appropriate. Finally, the Veteran asserts that he experiences erectile dysfunction (ED) which is associated with his testicular condition. However, VA examiners from September 2009, August 2012, December 2012, June 2014, and September 2020 all concluded that ED was associated with other diagnosed conditions, including benign prostate hypertrophy, prostatitis, and hypogonadism. There is no competent evidence definitively linking ED to the service-connected testicular cyst and varicocele, and therefore a separate rating or special monthly compensation for loss of use of a creative organ is not appropriate in this case. REASONS FOR REMAND An initial rating higher than 10 percent for low back strain prior to August 14, 2012 An initial rating higher than 20 percent for low back strain from August 14, 2012 In November 2017, the Board remanded these issues to obtain a retrospective opinion regarding the severity of the Veteran’s low back strain. Specifically, a VA examiner was asked to comment on whether range of motion measurements taken from September 2007, September 2009, and August 2012 VA examinations could be estimated in terms of active motion, passive motion, weight-bearing, and/or nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Because no such opinion was obtained in response to the November 2017 remand, the Board again requested the opinion in January 2020. An opinion was obtained in September 2020. However, the examiner addressed the Veteran’s bilateral foot disability, not his lumbar spine. Therefore, another remand is required to obtain the retrospective opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for a bilateral foot disability The Veteran contends that he has a bilateral foot disability related to service, including wearing boots during service. In July 2018, a VA examiner diagnosed bilateral foot arthritis and bilateral plantar calcaneal enthesophytes but concluded that these disabilities were not related to service. The rationale for that opinion was that there was no evidence of such foot problems during service, no established chronicity of care, and no other nexus. In January 2020, the Board remanded the issue because the examiner did not address the Veteran’s specific contention that wearing boots during service led to his current disabilities. A new VA examination was conducted in September 2020, but the examiner found that no current bilateral foot disability was present, and no further opinion was provided. Notably, the July 2018 VA examination included diagnostic imaging, but the September 2020 examination did not. Because the July 2018 VA examination findings established a current disability for the purposes of this claim, an opinion should still be obtained to determine the relationship, if any, between the diagnosed disabilities and the Veteran’s use of boots during service. TDIU Because a decision on the above issues being remanded could significantly impact a decision on the issue of a TDIU, they are inextricably intertwined. A remand of the claims for a TDIU is required. Notably, the Veteran has not completed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. A substantially complete VA Form 21-8940 facilitates a TDIU claim because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. It concludes with a series of sworn certification statements, and in endorsing it, a veteran attests to his employment status and signals understanding of the benefit’s incompatibility with substantially gainful work. He should be afforded the opportunity to submit this form on remand. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate medical professional to provide a retrospective opinion regarding the Veteran’s service-connected low back strain. If the examiner determines that an examination is necessary to provide the requested opinion, one should be scheduled. The examiner should comment on whether range of motion measurements for passive motion, weight-bearing, and/or nonweight-bearing can be estimated from the VA examinations conducted in September 2007, September 2009, and August 2012. If the examiner is unable to provide this retrospective opinion, he/she should explain why this is the case. 2. Forward the claims file to an appropriate medical professional to provide an opinion regarding the etiology of the Veteran’s bilateral foot arthritis and plantar calcaneal enthesophytes. If the examiner determines that an examination is necessary to provide the requested opinion, one should be scheduled. The examiner should provide an opinion as to whether it is at least as likely as not that the bilateral foot arthritis and plantar calcaneal enthesophytes diagnosed in July 2018 are related to an in-service event, injury, or disease, including the use of boots during service. (Continued on the next page)   3. Send the Veteran and his representative the appropriate notice letter explaining how to establish entitlement to a TDIU and requesting that he furnish any information or evidence pertinent to this claim. Include a VA Form 21-8940 TDIU application and instruct the Veteran to complete and return the form. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.