Citation Nr: 21009146 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-65 478 DATE: February 19, 2021 ISSUES 1. Entitlement to an initial compensable disability rating for service-connected left varicocele. 2. Whether an extraschedular evaluation is warranted under 38 C.F.R. § 3.321 (b) for service-connected left varicocele. ORDER Entitlement to an initial compensable disability rating for service-connected left varicocele is denied. Entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 (b)(1) for service-connected left varicocele is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s service-connected left varicocele is not manifested by obstructive voiding, urinary tract infections, or renal dysfunction. He does not require absorbent materials or appliances, and his increased voiding frequency is not related to his service-connected left varicocele. 2. The preponderance of the evidence of record does not show that the Veteran’s disability picture for service-connected left varicocele is unusual or exceptional such that it is not contemplated by the symptomatology appearing in the diagnostic codes used in the evaluation of disabilities of the genitourinary system. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for service-connected left varicocele have not been met or approximated. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.115(a)-(b), Diagnostic Code 7529. 2. Entitlement to extraschedular consideration for service-connected left varicocele is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (b)(1), 4.115 (a)-(b); Diagnostic Code 7529. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from November 1962 to November 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in January 2020 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. In February 2020, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the Veteran has claimed that he is entitled to an initial compensable disability rating for his service-connected left varicocele, and that he is entitled to a separate evaluation under 38 C.F.R. § 3.321 (b)(1) for service-connected left varicocele, the Board has re-characterized the previous issue on appeal as two separate issues, as identified on the title page. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Entitlement to an initial compensable disability rating for service-connected left varicocele, to include on an extraschedular basis under 38 C.F.R. § 3.321 (b)(1). The Veteran has claimed that his service-connected left varicocele is worse than currently rated, and that he is entitled to compensation on an extraschedular basis due to his erectile dysfunction. a) The Increased Ratings Claim Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected left varicocele is currently rated at a noncompensable disability rating under Diagnostic Code 7529. Under Diagnostic Code 7529, benign neoplasms of the genitourinary system are rated as voiding dysfunction or renal dysfunction, whichever is predominant. Renal dysfunction manifested by constant or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7529 warrants a 30 percent evaluation. Renal dysfunction resulting in albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling warrants a 60 percent evaluation. Renal dysfunction manifested by persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, warrants an 80 percent evaluation. Finally, renal dysfunction that requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent evaluation. 38 C.F.R. § 4.115a. As an initial matter, the Board notes that during the Veteran’s testimony, he specifically denied that he had any renal dysfunction, and the Veteran’s Representative confirmed that the Veteran is not seeking compensation based on renal dysfunction. See January 2021 Appellate Brief. Therefore, following DC 7529, the Veteran has argued that he should be rated for voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Evaluation under urine leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent evaluation is warranted. When there is leakage requiring the wearing of absorbent materials which must be changed two to four times per day, a 40 percent disability rating is warranted. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent rating contemplates a daytime voiding interval less than one hour or awakening to void five or more times per night. A 20 percent rating contemplates daytime voiding interval between one and two hours or awakening to void three to four times per night. A 10 percent rating contemplates daytime voiding interval between two and three hours or awakening to void two times per night. 38 C.F.R. § 4.115a. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. 38 C.F.R. § 4.115a. Turning to the available evidence, the Veteran stated in his Notice of Disagreement (NOD) from July 2015 he is entitled to a higher disability rating, as his service-connected left varicocele disability is worse than currently rated. He further wrote that he has urinary issues, and that he has to “go to the bathroom every 1 ½ to 2 hours both during the day and at night.” The Veteran testified at a Board Hearing before the undersigned Veterans Law Judge in January 2020. The Veteran testified that his left varicocele is worse than currently rated, and that he has a scar on his scrotum that only at “certain times of the day you can see it.” He testified that the examiner at his last VA exam was unable to find the scar on that day. The Veteran testified that he has increased urinary frequency, but that he does not need adult diapers, has no renal dysfunction, and has never had a urinary tract infection. The Veteran did however testify that he has residual effects from his left varicocele surgery, whereby his testicle “never dropped.” He further stated that this at first caused “a little” erectile dysfunction, but “then it got worse. Now, I have [an implant]. The Veteran is competent to provide evidence of that which he has seen and experienced, including his increased urinary frequency, and his symptoms of erectile dysfunction. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Turning to the medical evidence, the Veteran was given a VA examination in July 2017. The Veteran was seen in person, but the examiner denied reviewing the Veteran’s claims file. After confirming the Veteran’s diagnosis of residuals status post left varicocelectomy, the examiner denied that the Veteran experienced renal dysfunction as well as voiding dysfunction. The examiner denied urine leakage, and made no mention of increased urinary frequency, despite the claims of the Veteran. The examiner also denied that the Veteran had erectile dysfunction, which is again, contrary to the statements of the Veteran. The examiner denied conducting a physical exam “per Veteran’s request.” In consideration of the above, the Board finds that the July 2017 VA examination is inadequate for rating the current severity of the Veteran’s service-connected disability. In particular, the examiner did not conduct a review of the Veteran’s claims file, and there is evidence that the Veteran’s lay statements were not considered. For ratings purposes, this is especially important when it comes to urinary frequency, which the VA examiner denied that the Veteran had any issue with. As a result, the Board deems the July 2017 VA examination inadequate, and affords it no probative weight. As discussed above, the Board remanded this issue in February 2020. The reason for the remand was in part due to the inadequacy of the July 2017 VA examination, but also since the Veteran had claimed his service-connected disability had worsened since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination). As a result, the Veteran was given a VA examination in February 2020. The Veteran was seen in person, and the Veteran’s claims file was reviewed. In addition to the diagnosed left varicocele, the examiner noted a diagnosis of erectile dysfunction. The examiner noted the lay statements of the Veteran, including his reports of erectile dysfunction, “and frequent nocturia ever since the surgery.” Upon clinical testing, the examiner confirmed that the Veteran does not have any renal dysfunction. The examiner did however note voiding dysfunction. The Veteran had no urine leakage, he does not require absorbent materials, nor the use of an appliance. The examiner noted that the Veteran had increased urinary frequency, insofar as he experiences a daytime voiding interval of less than 1 hour, and nighttime awakening to void 3 to 4 times per night. There were no signs of obstructed voiding. The examiner noted that the Veteran did not have a visible scar, and wrote that despite the Veteran’s positive surgical history, there is no visible or palpable scar from his procedure 56 years ago. It has likely faded and remodeled over the decades to the point where it is no longer possible to differentiate it from normal skin. No other pertinent physical findings were made. The Veteran does experience erectile dysfunction, to which the Veteran says is due to his varicocele surgery. The examiner however indicated that the erectile dysfunction was less likely than not attributable to the service-connected left varicocele. The following rationale was provided It is the opinion of this examiner that the Veterans erectile dysfunction is less likely than not caused by the Veteran’s service-connected varicocele or the repair thereof. The mechanism causing erection of the penis are vascular and neural (which can be affected by the psychological and chemical) and while nearby, are several layers of tissue and bone away from the operative field of a varicocele repair. The RO then requested an addendum opinion regarding the etiology of the Veteran’s voiding dysfunction. As a result, in October 2020, the VA examiner attached the following addendum opinion: While it is possible that the Veteran’s symptoms were related to catheterization at the time of the procedure, this is unlikely. It is less likely than not that the Veteran’s voiding dysfunction is related to his varicocele or to the surgery for it. The various mechanisms that are concerned with the frequency and effectiveness of the action of urinary voiding are not related anatomically to the varicocele or the surgery for it. Statistically speaking, the Veteran’s urinary frequency is most likely related to prostatic hypertrophy and incomplete emptying of the bladder. This is however, statistically based conjecture, and based on no evidence whatsoever … although this examiner is unable to determine the specific cause of the Veteran’s urinary frequency without resorting to conjecture, it is at least as likely as not that it is due to non-service connected condition. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran is not entitled to an initial compensable disability rating for his service-connected left varicocele. To begin, and as discussed above, the Veteran’s service-connected left varicocele is rated under DC 7529. As per the Veteran’s testimony, he does not experience renal dysfunction, nor voiding dysfunction, nor obstructive voiding, and this was confirmed by the February 2020 VA examiner. As a result, and under the Diagnostic Codes, the only possible portion whereby the Veteran could be rated would be for his voiding dysfunction. Having said that, the October 2020 VA examiner’s addendum opinion opined that it was less likely than not the case that the Veteran’s voiding dysfunction was due to his service-connected left varicocele. The examiner incorporated the Veteran’s medical history and the Veteran’s statements from the previous February 2020 exam. And while the VA examiner in October 2020 provided, as an aside, “statistical based conjecture” that the Veteran’s urinary frequency was possibly due to prostatic hypertrophy, they still opined that the Veteran’s urinary frequency was less likely than not related to his service-connected disability. The opinion was detailed and thorough, and the Board has afforded it significant probative weight. Finally, while the Board recognizes that the Veteran believes his urinary frequency is due to his left varicocele, the record does not reflect that the Veteran possesses the requisite expertise to provide any medical diagnosis or opinion on etiology, and his lay opinions on this matter, insofar as they are intended as such, cannot be considered competent evidence in support of his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). Thus, the Board finds that the only symptom that the Veteran has noted under DC 7529, increased urinary frequency, is less likely than not related to his service-connected varicocele. In sum, under DC 7529 the Veteran does not have renal dysfunction, nor obstructive voiding, nor a urinary tract infection. He does experience increased urinary frequency, however that symptom is not etiologically related to his service-connected varicocele. Thus, based on the symptomatology of the Veterans’ service-connected left varicocele, the Veteran is not entitled to an initial compensable disability rating. 38 C.F.R. § 4.115a. In reaching these conclusions, the Board finds that the preponderance of the evidence is against a finding that he is entitled to an initial compensable disability rating. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). b) Extraschedular Consideration Finally, the Board notes that the Veteran’s Representative argued during the Veteran’s hearing that his erectile dysfunction was not adequately considered by the current Diagnostic Criteria, and that he may be entitled to extraschedular compensation for that erectile dysfunction. See January 2020 Hearing Transcript. The Board may consider whether the Veteran’s disability picture warrants referral to the Director of VA’s Compensation Services for the evaluation of entitlement to extraschedular compensation. Such a referral requires a finding that the evidence demonstrates an exceptional disability picture and that the available schedular rating for a service-connected disability is inadequate. If the criteria reasonably describe the Veteran’s disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In this instance, the Veteran’s claim was remanded in February 2020 for extraschedular consideration by the Director of Compensation and Pension Services. That advisory opinion was delivered in October 2020, and the claim for entitlement to extraschedular consideration was denied. They indicated that there was no unusual or exceptional disability patter than had been demonstrated that would render the application of the regular rating criteria as impractical. They also found marked interference with employment or frequent periods of hospitalization due to the left varicocele were not shown by the evidence of record. After considering all of the evidence of record, to include the specific evidence discussed in this decision, the Board finds that an increased disability rating based on extraschedular considerations is not warranted. The schedular criteria in this case includes the following considerations: renal/voiding dysfunction, urine leakage, urinary frequency, and obstructed voiding. In this case, the Veteran’s predominant symptoms of his service-connected disability – increased urinary frequency – is not etiologically related to his service-connected disability, as discussed above. With regards to the Veteran’s complaint of erectile dysfunction, the medical evidence indicates that this is not actually due to the Veteran’s service-connected left varicocele. Importantly, the February 2020 VA examiner provided an etiological opinion that the erectile dysfunction was less likely than not due to the service-connected disability, and the Board has afforded that examination significant probative weight. The preponderance of the evidence is against the Veteran’s claim that his erectile dysfunction is a related symptom of his service-connected left varicocele. He has not complained of any further symptoms or complications which he believes are related to his service-connected disability, and which fall outside the schedular criteria. As such, the threshold factor for the assignment of extraschedular consideration has not been met. And as explained in Thun and repeated in the recent cases of Urban v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1312 (Sep. 18, 2017) and King v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1829 (Dec. 21, 2017), if this threshold factor - sometimes referred to Thun Step 1 - is not met, the question of marked interference with employment need not be addressed. (Continued on next page.) 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) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.