Citation Nr: 21007917 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-34 226 DATE: February 11, 2021 ORDER Entitlement to a rating in excess of 10 percent for status-post right inguinal herniorrhaphy with right testalgia with non-descending testicle is denied. FINDING OF FACT During the period on appeal, the Veteran’s status-post right inguinal herniorrhaphy with right testalgia with non-descending testicle did not manifest in recurrent postoperative inguinal hernia. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for status-post right inguinal herniorrhaphy with right testalgia with non-descending testicle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.21, 4.114, Diagnostic Code (DC) 7338. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to May 1995. He served honorably in the U.S. Army and also had service in the Army National Guard. The Board thanks the Veteran for his service to our country. The issue of a rating in excess of 10 percent for status-post right inguinal herniorrhaphy with right testalgia with non-descending testicle was previously before the Board in June 2019, when the Board denied the claim. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2020 Order, granting a May 2020 Joint Motion for Remand (Joint Motion), the Court vacated and remanded the June 2019 Board decision consistent with the terms of the Joint Motion. The case has now returned to the Board for further appellate review and readjudication consistent with the terms of the Joint Motion. Entitlement to a rating in excess of 10 percent for status-post right inguinal herniorrhaphy with right testalgia with non-descending testicle is denied. The Veteran contends that a rating in excess of 10 percent for status-post right inguinal herniorrhaphy with right testalgia with non-descending testicle is warranted. The Board finds that a higher rating is not warranted. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Inguinal hernias are rated under DC 7338. Under this diagnostic code, a 10 percent rating is warranted for inguinal hernia postoperative recurrent, readily reducible and well supported by truss or belt; a 30 percent rating is warranted for inguinal hernia small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible; a 60 percent rating is warranted for inguinal hernia large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The current claim for increase was filed on May 7, 2015, and the Board will look at the evidence within the year prior to that filing to determine whether an increase occurred within that time frame. The Board has reviewed all of the evidence in the Veteran’s record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). By way of background, service connection for status post right hernia repair was granted at a noncompensable rating in a September 1997 rating decision. In an April 1999 VA examination report, the Veteran reported pain in the right testicle with sitting, exercise, and during sexual intercourse. On physical examination, the examiner noted no inguinal hernia. The examiner rendered diagnoses of status-post inguinal hernia repair in November 1991 and high-riding right testicle in the inguinal canal with pain secondary to complications of right inguinal hernia repair. A May 1999 rating decision granted a 10 percent disability rating “based on the symptoms of pain from the testicle.” In a June 2015 VA examination report, the Veteran reported pain with sitting, exercise, and sexual intercourse which had worsened over time in that he noted scrotal swelling three times each month for 3 to 5 days. On examination, the examiner noted that no hernia was detected but noted postsurgical hernia repair high riding right testicle in the inguinal canal and remarked that it is a complication of his inguinal surgery. The examiner concluded that there was a functional impact in flare-ups with pain and swelling affecting prolonged sitting and bending. In a July 2015 VA examination report of the male reproductive system, the examiner noted abnormal testis with the right testicle in the distal inguinal canal. The examiner noted that there was no history of epididymo-orchitis and that the Veteran had no renal dysfunction. In an August 2015 statement, the Veteran stated that his hernia is postoperative and recurrent and that the testicle is deformed and twists and retracts into the inguinal canal 3 to 4 times each week, causing pain and discomfort. He stated that when the testicle is drawn into the inguinal canal he has to lie down and extract the testicle out of the canal, which often takes several hours. He stated that any type of physical activity including walking reactivates the hernia. In a September 2015 VA examination report, the Veteran reported intermittent pain in the right side of the scrotum and right testis which had progressively worsened over the years. The Veteran reported episodic right scrotal painful swelling occurring three times each month with each painful episode lasting 2 to 3 days. He reported that the condition was progressively worsening and that he had pain on any right scrotal contact, and that in July and August 2015, the nature of the pain changed, becoming throbbing. He reported that pain now occurs after sitting for one hour or when standing for greater than 20 minutes. He reported that he had used 10 days of sick leave for right testicular pain. On examination, the examiner noted that no hernia was detected and that there was no recurrence of the right inguinal hernia. The examiner noted that the right testis was very retracted out of the scrotum and was exquisitely painful to palpation, and noted a functional impact in that work was interrupted every hour while sitting with recurrence of severe right inguinal pain and that work was interrupted every 20 minutes while standing with right inguinal pain. In a July 2016 disability benefits questionnaire, the Veteran’s private treatment provider rendered diagnoses of inguinal hernia and post-operative complications, right testicle retracted and high riding since surgery with progressive pain and sensitivity. The treatment provider noted that no hernia was detected and remarked that there was no residual hernia but that the right testicle was retracted and painful, causing problems with sexual intercourse. In a September 2016 letter, the private treatment provider noted that the Veteran had persistent pain in the right testicle, suspected to be due to his herniorrhaphy as it was not present pre-operatively. The provider noted that the Veteran complained of present pain and sensitivity which could be severe, especially during sexual intercourse. In an October 2016 disability benefits questionnaire, the private treatment provider noted inguinal hernia, diagnosed in 1991, and high riding right testicle secondary to hernia repair. On examination the provider noted that no hernia was detected. The provider noted persistent pain in the right testicle, considered inoperable, and severe pain off and on which caused the Veteran to miss work at times. In a November 2017 primary care note, on examination the VA provider noted no inguinal hernia. In a July 2018 VA examination report, the examiner rendered a diagnosis of right testalgia with non-descending testicle, status post right inguinal hernia, remarking that for the VA established diagnosis of status post right inguinal herniorrhaphy, the diagnosis is changed and it is a progression of the previous diagnosis, testicular pain due to surgery. The examiner noted that repair could not be guaranteed. The Veteran reported worsening pain as the right testicle is chronically pulled up with persistent pain and that over the years it has affected his sexual activity due to pain. On examination, the examiner noted that no hernia was detected. The examiner concluded that there was functional impact as the Veteran did administrative work and that walking around the office and climbing up and down stairs at the office was becoming more painful due to testalgia. In an August 2018 urology note, the VA physician noted that at times the Veteran’s right testis becomes stuck in high riding position, causing significant pain. On examination, the physician noted normal left testis and normal right testis in the lower aspect of the inguinal canal which could be reduced to the upper part of the scrotum. The physician noted no hernias. The physician noted that the Veteran was offered a referral for a possible orchiopexy but that he declined. In a December 2019 scrotal ultrasound report, the provider noted that the right testis is located within the right inguinal canal and that both testicles demonstrate somewhat reduced volume but without focal lesions. In a June 2020 note, the Veteran sought treatment for a belly button hernia which was getting bigger with pain and discomfort. There is no evidence that this is related to the Veteran’s service-connected disability. There is no competent evidence of a recurrent inguinal hernia during the period on appeal. The Board finds that a rating in excess of 10 percent for the Veteran’s disability is not warranted. In so finding, the Board places great probative value on the objective findings of VA examiners, his private provider, and his VA primary care provider in concluding that the Veteran had no inguinal hernia during the period on appeal. While the Veteran is competent to report his symptoms, he is a layperson and does not profess to have the medical expertise required to determine whether pain is due to a recurrent inguinal hernia. The Board also places great probative value on the medical conclusions as to the functional loss caused by the Veteran’s testalgia with non-descending testicle secondary to his herniorrhaphy. Specifically, functional impact was noted in that testalgia due to the high riding right testis precluded the Veteran from standing or sitting for prolonged periods of time; increased with exercise, walking, bending, and climbing and descending stairs; and affected his sexual activity. (The Board observes that the Veteran is service-connected for erectile dysfunction associated with testalgia and is in receipt of special monthly compensation for loss of use of a creative organ; these issues are not on appeal.) The Veteran relates, and the medical evidence reflects, that he can reduce the right testis back to the scrotum by himself, a process that can take hours. While he was offered referral for a possible orchiopexy, there is no evidence that he required medical assistance to return the retracted right testis to the scrotum. Accordingly, the Board finds that functional loss due to status-post right inguinal herniorrhaphy with right testalgia with non descending testicle does not more nearly approximate a rating in excess of 10 percent. Further, the Board concludes that an additional separate rating under a different diagnostic code is not warranted. As noted above, the Veteran is separately service-connected for erectile dysfunction associated with testalgia and is in receipt of special monthly compensation for loss of use of a creative organ. Further, service connection for residual scar is also in effect. While reduced bilateral testis volume was noted, there is no evidence of testicular atrophy secondary to the service-connected disability. With respect to the contention that high riding right testicle manifesting in pain should be rated by analogy under DC 7525 (epididymo-orchitis which the regulations indicate is to be rated under § 4.115a for urinary tract infection), the Board observes that such a separate rating for pain already compensated in the current disability rating would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. With respect to the July 2018 examiner’s change in diagnosis, the Board finds that such a change does not warrant a separate disability rating for right testalgia with non-descending testicle. As an initial matter, in April 1999 the examiner rendered diagnoses of status-post inguinal hernia repair in November 1991 and high-riding right testicle in the inguinal canal with pain secondary to complications of right inguinal hernia repair; accordingly, the initial compensable rating was based on the functional loss caused by right testicular pain. Irrespective of any changes to the wording of the diagnosis, the compensable rating was originally and continues to be based on functional loss from pain due to the high riding right testis; the Board notes that there is no evidence that the high riding right testis manifests in functional loss other than that caused by pain. Further, as stated above, to award a separate disability rating based on the same symptomatology would constitute impermissible pyramiding. Finally, with respect to the contention that an extraschedular rating is warranted for testalgia, the Board finds that functional loss due to pain is ratable on a schedular basis and that VA has fulfilled its duty to maximize benefits by exhausting all schedular alternatives for rating a disability, including assigning a higher schedular rating if the disability more nearly approximates the higher rating, before triggering the extraschedular analysis, which is meant to be “exceptional.” See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). The Board finds the 10 percent rating under DC 7338 appropriate when 38 C.F.R. § 4.20 is considered. That regulation requires that an unlisted condition like testalgia be rated under a closely related disease. In this case, residuals of right herniorrhaphy and DC 7338 is appropriate given the pain is in the area of the herniorrhaphy and is a residual of that surgery. As the Board finds that the first Thun element is not met, it does not need to address the second Thun requirement. In essence, the Veteran reports pain due to the hernia surgery which impacts prolonged sitting and standing as well as bending. This pain and functional loss is adequately contemplated by the rating schedule and the assigned schedular evaluation. The Board notes that the Veteran has filed a claim for total disability rating based on individual unemployability but contends that it is due to migraines. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.