Citation Nr: 21012185 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-16 903 DATE: March 3, 2021 ORDER From August 8, 2006 to August 14, 2007, an initial 10 percent rating for epididymitis is granted. From August 14, 2007, excluding a temporary total rating from January 17 to March 1, 2012, a rating in excess of 10 percent for epididymitis is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected epididymitis dymitis, is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s epididymitis was manifested by periodic pain and swelling and required long-term drug therapy, without recurrent symptomatic infections requiring drainage or frequent hospitalization (greater than two times/year) or continuous intensive management, and at no time did the disability result in renal dysfunction. CONCLUSIONS OF LAW 1. From August 8, 2006 to August 14, 2007, the criteria for an initial 10 percent rating for epididymitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115b, Diagnostic Code (DC) 7525. 2. For the entire appeal period, excluding a period of temporary total rating, the criteria for a rating in excess of 10 percent for epididymitis was not met at any time. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115b, DC 7525. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1974 to April 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the Veteran testified at a RO hearing before a Decision Review Officer. A transcript of the hearing is associated with the record. In November 2018 and January 2020, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to an initial compensable rating for epididymitis from August 8, 2006 to August 14, 2007, a rating in excess of 10 percent for epididymitis from August 14, 2007 to January 16, 2012, and since March 1, 2012. The Veteran contends that his service-connected epididymitis is more severe than is reflected by his currently assigned disability ratting. Specifically, he contends that the pain from such condition limits his functional ability, and he has more frequent urinary tract infections (UTIs) than the current rating contemplates. After a review of the record, the Board finds that the Veteran’s epididymitis required long-term drug therapy. Accordingly, a 10 percent rating is warranted for the entire appeal period; however, it did not manifest in symptoms of a frequency or severity to warrant any higher rating. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.   Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s epididymitis has been rated as noncompensable prior to August 14, 2007, and as 10 percent disabling thereafter (notwithstanding a temporary total rating from January 17 to March 1, 2012), pursuant to DC 7599-7525. 38 C.F.R. § 4.115b, DC 7525. In this instance, the hyphenated diagnostic code indicates that the Veteran's epididymitis is an unlisted disability for which specific rating criteria do not exist, and is rated by analogy under DC 7525, regarding chronic epididymo-orchitis. Id. Pursuant to DC 7525, chronic epididymo-orchitis is to be rated under the rating criteria for a urinary tract infection. See id.; see also 38 C.F.R. § 4.115a. Under the relevant criteria, a 10 percent disability rating is warranted for long-term drug therapy, 1-2 hospitalizations per year, and/or requiring intermittent intensive management. A 30 percent disability rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Finally, poor renal function is to be evaluated under the relevant rating criteria for renal dysfunction. Id. Prior to the period on appeal, the medical evidence of record reflects that the Veteran had been experiencing pain and swelling in the left testicle and epididymitis, and treating it with Motrin as needed. See March 2004 VA Treatment Records. The first evidence during the period on appeal, from August 2006, shows the Veteran had the same continuing symptoms, but at that time he was prescribed ibuprofen to treat his symptoms. The Veteran continued to treat his symptoms with prescribed ibuprofen. Additionally, in August 2007, the Veteran was prescribed anti-inflammatory medication for his symptoms as well. The Veteran first was treated for a UTI during the period on appeal in April 2009, at which time he reported pain his testicle for about a month. He was treated with pain medication and antibiotics and it resolved. The Veteran then underwent a VA general medical examination in January 2010, at which time the examiner noted his complaints of testicular pain, and the resulting treatments. His epididymitis was swollen, and his left testicle was tender on examination. The examiner also noted that the Veteran had chronic prostatitis and localized prostate cancer, as well as erectile dysfunction (ED). There was no etiological opinion regarding ED; however, the examiner noted that the prostate issues resulted in hesitancy, difficulty stopping his urine stream, frequency and nocturia of 3 to 5 times per night. He also reported intermittent burning sensations with urination but denied hematuria or pyuria. The Veteran then underwent a VA genitourinary examination in May 2010, wherein he reported continuing pain and swelling in his left testicle. He denied any urinary problems at that time, and the examiner noted he had not been treated for a UTI in the last year. He also reported he was able to obtain an erection but occasionally had pain with an erection or ejaculation associated with the left testicle. On examination, he had “fullness” to the left epididymitis with tenderness, but normal testicles. Then, in August 2010, the Veteran underwent another VA genitourinary examination. The Veteran reported the same symptomatology as before, but also noted that he had “weakness” with chronic pain and numbness in musculoskeletal parts of the body which he believed was related to his epididymitis; however, the examiner opined that such complaints were unrelated. The Veteran did complain of nighttime urinary frequency of 4 times per night, which the examiner found suggestive of prostatic enlargement. He also reported a diminished stream as well as hesitancy, and while he denied dysuria, he did report an occasional tingling. He also reported occasional incontinence, roughly 3 to 4 times per month, which is caused by difficulty reaching the toilet on time. The examiner noted he had one UTI in 2009, but otherwise had not had one for 5 to 10 years, and had only experienced 3 to 4 total. He had no history of bladder stones, nephritis, or hospitalizations for a UTI, nor has he had any catheterizations, dilations, or drainage procedures. The examiner also noted his history of prostatitis and diagnosis of prostate cancer, as well as the Veteran’s report of being diagnosed with tuberculosis of the testicle while in service; but the examiner noted there was no evidence of use of medication for 6 to 9 months thereafter. Finally, the examiner noted the Veteran had ED, with some pain on erections, but that he was able to maintain an erection. In September 2011, the Veteran underwent another VA exanimation, specifically for the male reproductive system. At that time, the Veteran was noted to have the diagnoses of epididymitis and neoplasms of the prostate, as well as a prior diagnosis of tuberculosis of the testis from service for which he was treated with antibiotics for 2 weeks. The examiner noted the Veteran had not had an orchiectomy, although he did have a voiding dysfunction of an unknown etiology, with frequency, hesitancy, and leakage issues. He also was noted ot have a history of UTIs, but there was no indicated treatment, including long-term drug therapy, hospitalizations, drainage, or intensive management. Furthermore, the examiner noted the Veteran had ED, but also that such was due to hypertension and hyperlipidemia, and not attributable to either the prostate cancer or the epididymitis dymitis. The examiner noted that the Veteran had undergone a treatment to receive a nerve-block for his epididymal pain, which helped for several days. Upon examination, the Veteran had a normal epididymitis but tenderness to the left testicle. In January 2012, the Veteran underwent a left spermatic cord denervation to alleviate the pain in his left testicle. He was granted a temporary total rating for such procedure through March 1 of that year. In April 2013, the Veteran underwent another VA examination for the reproductive system following the denervation, wherein the examiner noted the Veteran’s epididymitis and prostate cancer diagnoses. The Veteran reported that the denervation did not help his pain levels, and the examiner noted his remaining option would be an orchiectomy. The examiner noted the Veteran took NSAIDs [Non-Steroidal Anti-Inflammatory Drugs] and hydrocodone to treat his symptoms. The examiner did not endorse a voiding dysfunction at that time, nor did it indicate the presence of ED or recurrent symptomatic UTIs; however, the examiner did indicate that the Veteran had intermittent intensive management with “Cipro” [ciprofloxacin] treatment. Upon examination, the left testicle had tenderness, and the epididymitis was tender to palpitation on both sides. In August 2015, the Veteran again underwent a VA examination for his reproductive system. The examiner noted the same diagnoses as above, but also ED. The Veteran’s history was also noted, including his report of testicular tuberculosis, however the examiner did not find indication of tuberculosis in the treatment records. The Veteran reported constant pain in his left testicle at that time, and the examiner noted the development of prostate cancer, as well as ED and lower urinary tract symptoms. There was no renal dysfunction associated with his disorders, but the examiner did note he had a voiding dysfunction of an unknown etiology, including symptoms of urge incontinence, increased frequency, hesitancy, slow stream, and a weak stream. The examiner also noted the diagnosis of ED was attributable to diabetes, hypertension, and hyperlipidemia. Pertinent to the epididymitis, the examiner noted the Veteran used pain medication, had a nerve block, and had a denervation for treatment. On examination, the left testicle was swollen and tender to palpitation, but the epididymitis was normal. The examiner opined that the voiding dysfunction and ED were less likely than not related to the epididymitis. The Veteran then underwent another VA examination for his reproductive system in June 2017, at which time the epididymitis and ED were noted. The Veteran reported similar symptoms, and the examiner noted a voiding dysfunction and ED of unknown etiology. The examiner indicated that the ED was of an unknown exact cause, but included trauma, epididymitis, diabetes, hypertension, and urological surgery, as relevant history. The Veteran’s recurrent epididymitis was noted, but no pertinent treatment was noted besides the aforementioned denervation. Again, on examination, the left testicle and left epididymitis were tender to palpitation. In October 2017, the Veteran was treated by VA for a UTI, and given antibiotics. Thereafter, in August 2018, the Veteran was treated for salmonella bacteremia and gastroenteritis, and a UTI was given as a possible diagnosis. However, the following treatment doubted the presence of a UTI because of a lack of localized symptoms. The Veteran then underwent a final VA examination for his reproductive system in May 2019. At that time, the examiner noted the Veteran’s conditions, including the epididymitis, ED, prostate cancer, a voiding dysfunction, and tuberculosis of the left testicle which had resolved. The Veteran reported constant throbbing pain, including waking him up at night at times. He did not take continuous medication, nor did he have an orchiectomy or a renal dysfunction. The examiner also noted the Veteran had a voiding dysfunction that was likely related to his history of prostate cancer. Similarly, the examiner noted the Veteran had ED, which was also likely related to his history of prostate cancer. There was no specific treatment noted for the epididymitis, but on examination, the veteran’s testes were considerably harder than normal, and his epididymitis was tender to palpitation on both sides. Based on the foregoing, the Board initially finds that the Veteran required long-term drug therapy to treat his epididymitis for the entire appeal period. Specifically, the Veteran was prescribed ibuprofen to treat his epididymitis. The term “drug” is not explicitly defined in the ratings criteria, and as the Veteran was prescribed a treatment course of ibuprofen, the Board finds such qualifies as a drug for the purposes of the ratings criteria in this instance. Thus, an initial 10 percent rating is warranted from August 8, 2006 to August 14, 2007. However, a rating in excess of 10 percent under DC 7525 is not warranted at any point during the appeal period. In this regard, there is no evidence of recurrent infection requiring drainage or frequent hospitalization, nor is there evidence of continuous intensive management. To the contrary, the Veteran's lay reports and the evidence of record indicate that the most severe symptoms he has experienced during the appeal period were pain and swelling. Although the Veteran reported experiencing UTIs 2 to 3 times per year, the record contradicts this statement, and rather shows that the Veteran had one UTI in 2009, one UTI in 2017, and possibly but unlikely, one UTI in 2018. Therefore, the Veteran has no UTIs of a frequency or severity to warrant a higher rating. Additionally, the record uniformly reflects that his renal function has not been diminished. Thus, a higher rating for renal dysfunction is not warranted. The Board has also considered whether higher ratings may be warranted under different DCs, to include voiding dysfunction, which is rated under three sub-categories: Urinary Leakage, Urinary Frequency and Obstructed Voiding. In this regard, the record reflects inconsistent and intermittent symptoms of voiding dysfunctions. As noted above, hesitancy, difficulty stopping his urine stream, frequency, and nocturia were noted in the January 2010 examination, but such were all attributed to his prostate issues. Then, there were no voiding problems reported at the May 2010 examination. That same year, he reported nocturia, hesitancy, some incontinence, and some tingling, at the August 2010 examination. Again, the examiner found that the nocturia issues were suggestive of prostate issues but did not opine on the other voiding issues. The September 2011 examiner noted his voiding issues, but also that they had an unknown etiology, and the April 2013 examination did not include reports of voiding dysfunctions at all. Then, the August 2015 examiner noted urge incontinence, increased frequency, hesitancy, slow stream, and a weak stream, with an unknown etiology; however, the examiner opined that such were less likely than not due to epididymitis. The June 2017 examiner just noted that there was voiding dysfunction with an unknown etiology. And finally, the May 2019 examiner noted a voiding dysfunction, but opined it was likely related to the prostate issues. Importantly, the May 2019 examiner indicated that the voiding dysfunction, ED, and prostate cancer were all a progression of the service-connected disability. However, due to the earlier opinion contained therein, that the voiding dysfunction was due to the prostate issues, the later opinion appears to link the voiding dysfunction to the epididymitis through the prostate issues. In contrast, the Veteran reported continuous and recurrent symptoms of pain and swelling throughout the appeal period, irrespective of his voiding dysfunction complaints. Consequently, as the majority of VA examiners related the noted voiding dysfunctions to prostate issues, or declined to associate such with the epididymitis, the Board finds a rating for voiding dysfunction caused by epididymitis is not warranted. Notably, the only opinion which relates the voiding dysfunction to epididymitis is tenuous, and does so only through the prostate issues. The Board further finds that higher or separate ratings are not warranted under DC 7523 or 7524 as such require complete atrophy of the testis or removal of the testis, respectively. There is no indication here that one or both of the Veteran's testes are completely atrophied or have been removed. Specifically, physical examinations conducted during the course of the appeal reveals generally only tenderness on the left, and some hardness on both at the final examination, without any atrophy. The Board has also considered whether the epididymitis is more appropriately rated under 38 C.F.R. §§ 4.88b or 4.89 for tubercular infections. In this regard, the Veteran was noted ot have testicular tuberculosis at the same time as his epididymitis diagnosis. However, the medical evidence of record, including the VA examinations, show that such was treated shortly thereafter, and he has not had an active infection for at least 30 years prior to the period on appeal. Consequently, a higher or separate rating for tuberculosis is not warranted. The Board acknowledges the note to 38 C.F.R. § 4.115b regarding consideration of special monthly compensation (SMC) under 38 C.F.R. § 3.350 for any claim involving the loss, or loss of use, of one or more creative organs. In the instant case, the Veteran was found to have ED at nearly all the examinations of record, which was treated with medication. However, similar to the voiding dysfunction, the Veteran’s ED has not been attributed to or related to the epididymitis. Rather, the first 3 examinations of record declined to provide any etiological opinion, and the September 2011 examination found it was due to hypertension and hyperlipidemia, but not attributable to either the prostate cancer or the epididymitis. Likewise, the August 2015 examiner opined ED was due to diabetes, hypertension, and hyperlipidemia. Finally, the May 2019 examiner stated that ED was likely related to prostate issues, while also noting that it was a progression of the epididymitis. Similar to the voiding dysfunction, it appears that the causal relationship between epididymitis and ED does not exist, and rather is found through prostate issues. Further, the examiner stated that epididymitis can cause long term pain and swelling, which will lead to sexual dysfunction, and thus epididymitis is a possible physical cause of ED, and should not be ignored. While the Board acknowledges the May 2019 examiner’s opinion, it is also contradictory and refers more generally to epididymitis and ED, rather than to the Veteran’s specific case. Notably, the examiner earlier stated that ED was likely due to prostate issues. Consequently, as the majority of examiners do not relate ED directly to the service-connected epididymitis, and rather positively associate such with non-service-connected disorder, the Board finds a separate rating of SMC (k) for loss of a creative organ is not warranted. In summary, the Board finds the Veteran's service-connected chronic epididymitis has at all times manifested by periodic pain and swelling, without more severe symptoms such as recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times a year), and/or requiring continuous intensive management; a voiding dysfunction; active tuberculosis; ED; or atrophy or removal of the testes. Consequently, a preponderance of the evidence is against a finding in favor of entitlement to a disability rating in excess of 10 percent for chronic epididymitis dymitis. The Board further recognizes the Veteran’s sincerely held belief that epididymitis symptomatology is more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board finds the medical evidence, particularly the VA examinations, in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this regard, the Board notes that the Veteran’s reported symptomatology and severity of his epididymitis are not supported by the evidence of record. Specifically, the Veteran reported experiencing numerous UTIs per year, however the medical record only supports 3 UTIs total during the entire period on appeal. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected epididymitis; however, the Board finds that such symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. As such, that doctrine is not applicable in the instant appeal, and the increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected epididymitis. The Veteran also contends that he has obstructive sleep apnea, which is due to his active service, or was caused or aggravated by his service-connected epididymitis. Specifically, he reported that the pain from his epididymitis would wake him up during the night, and that medications for his symptoms caused a sleep disorder. After a review of the record, the Board finds another remand is necessary in order to properly adjudicate this issue. In this regard, the record includes a November 2011 VA opinion which stated that the "veteran's sleep apnea condition is not caused by or a result of his service-connected epididymitis" because "there has been no documented relationship" between the two "completely unrelated conditions." The examiner did not opine on the question of aggravation. In May 2019, the Veteran was afforded a VA examination for his reproductive system and an opinion regarding service connection on a direct basis was offered, noting that sleep apnea was less likely than not related to or incurred during his active service, to include due to the martial arts accident. As the opinions of record did not address the aggravation prong of secondary service connection, the Board remanded to obtain another opinion, which was provided in January 2020. The examiner at that time opined that obstructive sleep apnea was less likely than not caused by epididymitis because epididymitis was not an established etiology of obstructive sleep apnea, and it was more likely related to his obesity. The examiner also opined that obstructive sleep apnea was less likely than not aggravated by epididymitis because epididymitis pre-existed obstructive sleep apnea. Unfortunately, the above opinion is also inadequate regarding aggravation. In this regard, the examiner did not discuss the relationship between the Veteran’s epididymitis, including the complaints that his pain will wake him up, and the obstructive sleep apnea. Rather, the examiner’s entire opinion rests on the temporal aspect of the diagnoses. Notably, it is possible for a nonservice-connected disorder to be permanently aggravated by a more recently diagnosed service-connected disability. Therefore, although the Board sincerely regrets the additional delay, it finds that another opinion is necessary which adequately addresses the aggravation prong of secondary service connection. The matters are REMANDED for the following action: Forward the record to an appropriate VA clinician for a medical opinion pertaining to the etiology of the claimed obstructive sleep apnea. The record and a copy of this Remand must be made available to, and reviewed by, the clinician. In light of the global COVID-19 pandemic, the need for an examination of the Veteran is left to the discretion of the selected clinician. After a review of the record, the clinician should offer an opinion as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea is aggravated beyond its natural progression by his service-connected epididymitis. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability, rather than a temporary flare-up of symptoms. If aggravation is found, the examiner should determine, if possible, to what extent the obstructive sleep apnea was aggravated beyond its natural progression. A detailed and fully supported rationale should accompany any opinion proffered. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.