Citation Nr: 21008405 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-32 106 DATE: February 16, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right epididymitis with testicular atrophy (hereinafter “right testicle disability”) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s right testicle disability is manifested by atrophy of the testicle and pain to touch and with walking or sitting. 2. The Veteran is service connected for a right testicle disability (rated as 10 percent disabling) and erectile dysfunction (rated as noncompensable); these disabilities have not been shown to render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right testicle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.118, Diagnostic Code (DC) 7804 (2020). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from July 1963 to July 1965. The matters on appeal were previously before the Board of Veterans’ Appeals (Board) in December 2017, November 2018, May 2020, and September 2020, whereupon they were remanded for additional evidentiary development. 1. Increased rating for a right testicle disability The Veteran seeks a rating in excess of 10 percent for a right testicle disability. His symptoms are currently rated as analogous to scarring under DC 7804. DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating for three or four scars that are unstable or painful; and a 30 percent rating for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, the rater should add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Id. DC 7805 provides that VA should evaluate any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an “appropriate” DC. Id. at DC 7805. As a preliminary matter, the Board notes that DC 7800 is not applicable in the Veteran’s case, as it addresses scars of the head, face, or neck. DC 7801 addresses scars not of the head, face, or neck that are deep and nonlinear; under DC 7801, a 20 percent rating is warranted for scarring with an area or areas of at least 12 square inches (77 square cm) but less than 72 square inches (465 square cm). However, as the Veteran’s right testicle disability does not cover an area large enough to warrant an increased rating under DC 7801, that DC is likewise inapplicable. Additionally, the Board notes that DC 7802 provides a maximum 10 percent rating based on surface area for scars that are superficial and nonlinear; an evaluation under this DC need not be considered here, as the Veteran is already in receipt of a 10 percent evaluation. The Board further notes that the Schedule for Rating Disabilities includes provisions for evaluating disability of the testicle, under 38 C.F.R. § 4.115B. These provisions provide a noncompensable rating for complete atrophy of one testicle; a 20 percent rating for complete atrophy of both testicles; and a 30 percent rating for removal of both testicles. Id. at DCs 7523, 7524. The Veteran has not alleged, nor does the evidence discussed below reflect, that his right testicle has been removed, or that there is complete atrophy of both testicles. Thus, these provisions do not provide a basis for an increased rating. The instant appeal stems from the Veteran’s June 2012 claim for increased compensation. He underwent a VA examination in July 2013. The report notes by way of history that the Veteran injured his right testicle in 1964; the Veteran stated that his condition had worsened since that time. No history of voiding dysfunction, urinary tract infection, or kidney disease was noted, and there was no evidence of chronic epididymitis, epididymo-orchitis, or prostatitis. Erectile dysfunction was diagnosed (the Veteran has since been awarded service connection and special monthly compensation (SMC) for those symptoms). On physical examination, the Veteran’s right testicle was approximately 1/2 to 1/3 of normal size. The epididymis was tender to palpation. No history of benign tumors or malignancies was noted, nor was there any indication of functional impairment. In April 2019, the Veteran was afforded a VA examination. The report reflects the Veteran’s descriptions of worsening right testicle pain as well as increased urinary frequency and leakage (later attributed to benign prostatic hyperplasia (BPH)). He reported taking Tylenol for his pain. No history of orchiectomy was noted, and there was no evidence of renal dysfunction. The examiner observed that the Veteran had a history of chronic epididymo-orchitis or prostatitis, but no specific treatment history was provided. On physical examination, the Veteran’s right testicle was 1/2 to 1/3 or normal size and considerably softer than normal. The examiner noted that the Veteran’s epididymis was tender to palpation. No history of tumor or malignancy was noted. The examiner opined that the Veteran’s disability did not impact his ability to work. In June 2020, the Veteran was afforded another VA examination. The report shows the Veteran’s complaints of ongoing scrotal pain, treated with Tylenol and NSAIDS, as well as atrophy of the testicle. No renal dysfunction was noted. The testes and epididymis were not examined at the Veteran’s request. The Veteran was also diagnosed with BPH with associated voiding dysfunction; an accompanying opinion noted that BPH was very common in older men and was not caused by the Veteran’s right testicle disability. Subsequent opinions dated in December 2020 further noted that it was not at least as likely as not that the Veteran’s BPH was caused or aggravated by his service-connected right testicle disability. These opinions stated that BPH was not known to result from conditions affecting the male reproductive organs and its associated structures such as the Veteran’s service-connected right testicular disability. The examiner emphasized that “[t]here is no anatomic or pathophysiologic correlation” between the Veteran’s service-connected right testicle disability and his BPH. In November 2020, the Veteran underwent yet another VA examination. The report indicates that the Veteran reported pain with walking or sitting too long; he stated that his normal pain was 10/10 in severity, and that it felt like someone was squeezing his testicle. It was noted that the Veteran took pain medication. No history of orchiectomy or renal dysfunction was indicated. On physical examination, the right testicle was 1/2 to 1/3 normal size and the epididymis was normal. There was no indication of benign or malignant neoplasm. The Veteran described mild tenderness to touch or pressure of the testicle. In terms of functional impact, the examiner noted that the Veteran should “avoid employment that requires wearing tight clothing/uniforms due to increased pressure on genitals.” The Board has reviewed the Veteran’s VA treatment records, which do not indicate ongoing treatment for right testicle-related symptoms, apart from occasional complaints of pain in the region. The Board notes that VA clinical notes from 2017 reflect the Veteran’s report that he was concerned about his testosterone levels and requested that he be tested; there is no subsequent indication of testosterone deficiency. Based on the above, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for the Veteran’s right testicle disability. It is abundantly clear that the Veteran’s disability has caused him great pain; as noted above, the VA examination reports of record reflect that the Veteran’s right testicle is painful upon touch and upon ambulating and sitting. However, there is simply no probative evidence of record demonstrating that his right testicle disability has been both painful and unstable (i.e., with frequent loss of covering of the skin), as is required for a higher rating under DC 7804. See 38 C.F.R. § 4.118. Nor is there any indication that the Veteran’s disability is manifested by three or more separate scar-like injuries. The Board has considered the Veteran’s lay statements regarding his right testicle symptoms. The record contains hundreds of such statements, which all share a common theme—that the Veteran has suffered constant, severe pain in his right testicle ever since his 1964 injury which has rendered the testicle functionally useless. A representative sampling of such statements includes the Veteran’s September 2013 notice of disagreement; his July 2015 VA Form 9; April 2018 and August 2018 statements—in which the Veteran asserted that his right testicle was “ruptured” and that he was told by a doctor that the testicle was “never going to function any more”; and a September 2019 statement in which he alleged his symptoms were so severe as to warrant a 100 percent rating. (The Veteran has also repeatedly alleged that he is entitled to a retroactive award dating back to 1964, stating he was unaware at the time of his separation from service that he could file a claim. This contention—essentially a claim for an earlier effective date for the grant of service connection—has not been perfected to the Board.) The Board is sympathetic to the Veteran’s situations, particularly his reports of severe, unrelenting pain over a long period of time. Overall, however, the Board finds that his lay reports are consistent with the objective findings noted above and align with the criteria for a 10 percent evaluation—i.e., a single scar-like injury that is painful. The Board reiterates that “loss of function” of the right testicle, as the Veteran has alleged is the case here, does not provide a legal basis for an increased rating, under the provisions of 38 C.F.R. § 4.115B. Moreover, while the Veteran’s specific symptoms are certainly unfortunate, the Schedule for Rating Disabilities is intended to determine impairment in “earning capacity.” See 38 C.F.R. § 4.1. Here, there is simply no probative lay or medical evidence of functional impairment beyond that which is contemplated by the current 10 percent rating. Consequently, the Board finds that the Veteran’s lay statements, in combination with the findings of VA medical professionals, are consistent with his current 10 percent rating. The Board has considered referring this matter for consideration of an extraschedular rating given the severity of the Veteran’s reported symptoms. See 38 C.F.R. § 3.321(b)(1). Ultimately, however, the Board finds that such a referral is not warranted. The initial inquiry for determining whether extraschedular referral is warranted is if the evidence presents such an exceptional disability picture so that the available schedular evaluation is inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Veteran has reported symptoms of severe pain and loss of use of his right testicle. The Board finds that the rating criteria provided under DC 7804 contemplates pain; indeed, a 10 percent rating has been awarded by analogy to a painful scar. To the extent the Veteran has reported additional symptoms stemming from his right testicle disability, such as voiding dysfunction, the Board has obtained medical opinions, discussed above, indicating that such symptoms are neither caused nor aggravated by the Veteran’s service-connected disability. As such, they may not be considered in evaluating the disability on appeal. The Veteran has also reported symptoms of erectile dysfunction. As noted above, he is separately service connected for erectile dysfunction and has been awarded SMC for the loss of use of his creative organ. In short, the Board cannot find any evidentiary basis for referring this matter for consideration of an extraschedular rating because the available schedular rating is adequate in light of the symptoms attributable to the disability on appeal. In sum, the Board finds that the criteria for a rating in excess of 10 percent under DC 7804 have not been met at any point during the period under review. There are no other symptoms which warrant compensable evaluations under any other DC. Apart from the issues addressed above in his lay statements, the Veteran has not raised any other pertinent issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). Accordingly, the claim for an increased rating must be denied. 2. TDIU The Veteran contends that his service-connected disabilities, particularly his right testicle disability, render him unemployable. For the following reasons, the Board finds that the claim of entitlement to a TDIU must be denied. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion regarding unemployability, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In sum, to warrant a TDIU, the evidence must show that the claimant is incapable of “performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is currently in receipt of service connection for a right testicle disability (rated as 10 percent disabling) and erectile dysfunction (rated as noncompensable). His combined rating for these disabilities is 10 percent. Consequently, he is not eligible for a TDIU on a schedular basis, and thus the only question for the Board is whether TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b) (“It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.”). At the outset, the Board acknowledges that it may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure and follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director of Compensation Service to consider entitlement on an extraschedular basis. Id. The Veteran submitted the instant claim for compensation in June 2012. In various statements (including, for example, a statement dated in July 2018), he has asserted that he is unemployable due to his service-connected disability. More specifically, he has described suffering terrible pain in his right testicle, which makes it difficult for him to walk and sit for prolonged periods. He is certainly competent to report these symptoms, and the Board finds his statements credible. Moreover, the medical evidence of record confirms that the Veteran’s symptoms cause some functional impairment; most recently, a November 2020 VA examination report reflects that the Veteran should avoid employment that requires tight-fitting clothing due to increased pressure on genital area. The Board also acknowledges that it appears the Veteran has been unemployed throughout the appeal period. Notwithstanding, the mere fact of unemployment is not enough to justify a referral under 38 C.F.R. § 4.16(b). After careful review, the Board finds that none of the lay or medical evidence of record demonstrates that symptoms associated with the Veteran’s service-connected right testicle disability are severe enough to render him unable to secure and follow a substantially gainful occupation. In short, the Veteran has not explained, and the record does not establish, precisely how his symptoms of chronic pain and his inability to wear tight-fitting clothing amounts to an inability to “perform[] the physical and mental acts required” to be employed. See Van Hoose, supra. The assignment of a 10 percent rating under DC 7804 for right testicle pain is itself a recognition by VA that the Veteran’s industrial capacities are impairment. See id. at 363. The record contains no probative evidence demonstrating that the Veteran’s right testicle symptoms result in specific impairment above and beyond that which is already contemplated in his schedular rating—in other words, symptoms which cause him to be unable to secure and follow a substantially gainful occupation. The Board does not doubt that the Veteran’s chronic pain is a hindrance to functioning in a work environment. More must be shown, however, to warrant a TDIU. In sum, the evidence deemed most probative by the Board establishes that, while the Veteran’s service-connected disabilities impact his employability, such disabilities have not been shown to render him unable to secure and follow a substantially gainful occupation. The Veteran has not provided specific lay assertions regarding why his right testicle disability prevents him from working, nor do any of the VA examination reports of record demonstrate functional impairment rising to the level of unemployability. Accordingly, referral for consideration of a TDIU on an extraschedular basis is not warranted. The Board is grateful for the Veteran’s honorable service, and this decision is in no way meant to detract from that service. The Board is constrained by law, however, and unfortunately there is no basis on which to award the benefits sought. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.