Citation Nr: 21014016 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-41 619 DATE: March 11, 2021 ORDER Entitlement to a compensable rating for left epididymal cyst, including on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran’s left epididymal cyst has been manifested by pain throughout the appeal period but has not been productive of poor renal function, recurrent symptomatic infection requiring drainage, frequent hospitalization or continuous intensive management, or requiring long-term drug therapy, 1-2 hospitalizations per year and/or intermittent intensive management. 2. The symptoms of the Veteran’s left epididymal cyst do not present such an unusual or exceptional disability picture that the schedular rating provisions are inadequate, nor do his symptoms of his left epididymal cyst cause other related factors indicating marked interference with employment or frequent hospitalizations. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for left epididymal cyst, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.115b, Diagnostic Code (DC) 7525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Marine Corps from July 2005 to December 2006. The Veteran was discharged under honorable conditions. The Veteran is a Gulf War Era Veteran. In November 2018, the Board remanded the above issue to refer the Veteran’s left epididymal cyst claim to the Director of Compensation Service for extraschedular consideration. In July 2020, an Advisory Opinion was issued regarding extraschedular consideration of the Veteran’s left epididymal cyst. The Board is therefore satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are 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 DC, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Staged ratings have been considered for the Veteran’s left epididymal cyst. However, the Board finds that staged ratings are not appropriate for this condition as the evidence demonstrates that the Veteran’s left epididymal cyst has been consistent throughout the appeal period. 1. Entitlement to a compensable rating for left epididymal cyst, including on an extraschedular basis, is denied. The Veteran contends that he is entitled to a compensable rating for his left epididymal cyst. The Veteran is in a receipt of a noncompensable rating for his left epididymal cyst is under DC 7599-7525. The Veteran’s service-connected left epididymal cyst is evaluated by analogy under DC 7525. Under DC 7525, chronic epididymo-orchitis is rated as a urinary tract infection. 38 C.F.R. § 4.115b, DC 7525. Under DC 7525, evidence that a urinary tract infection requires long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management will result in the assignment of a 10 percent disability evaluation. The next higher rating of 30 percent requires evidence of either poor renal function or evidence of recurrent symptomatic infection requiring drainage, frequent hospitalization (greater than two times per year), and/or continuous intensive management. Id. DC 7525 also provides that tubercular infections are rated in accordance with §§ 4.88b or 4.89, whichever is appropriate. However, the evidence in the present case does not reflect that the Veteran suffers from tubercular infections. Under DC 7522, a 20 percent rating is warranted for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. No other evaluation is provided for under this diagnostic code. Two requirements must be met before a 20 percent evaluation can be assigned: (1) a deformity must be evident; and (2) the deformity must be accompanied by loss of erectile power. Simply stated, the condition is not compensable in the absence of penile deformity. VBA Manual M21-1, III.iv.4.I.3.b. The Board acknowledges that the Veteran most recently underwent VA examinations for his disability more than three years ago. However, as he has not alleged a worsening of his condition since that time, the mere age of an examination does not render it inadequate. As such, the record does not support the need for a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Turning to the relevant medical evidence, the Veteran’s VA treatment records note complaints of left testicular pain. The Veteran first established care at the VA in November 2009. Beginning February 2010, the Veteran has undergone treatment for his left testicular pain. In February 2010, he was given xylocaine and steroid injections for his left testicular pain. The Veteran continues to receive medication to manage his left testicular pain. In the June 2009 VA examination, the examiner noted the Veteran had a small left epididymal cyst. The Veteran reported that, since leaving the military, he has had severe pain in the left testicle. He reported that, at times, he cannot walk because of the pain. The Veteran did not have a history of renal failure, testicular trauma or torsion. The examiner noted that the Veteran had no chills or fever. He complained of left testicular pain that became worse with walking. The examiner noted no sexual dysfunction or inability to hold urine. His diet and appetite have been stable. The examiner also noted that the Veteran’s left epididymal cyst was not tender to touch. There was also no evidence of a hydrocele or varicocele, and the inguinal ring is firm suggesting no hernia. The Veteran was not known to have renal dysfunction. There was no lethargy, weakness, anorexia or weight loss which could have been attributed to the left epididymal cyst. The examiner also noted that the Veteran has a normal urinary stream and no incontinence. He does not have erectile dysfunction, renal colic, bladder stones, hospitalizations, acute nephritis, or neoplasms. In the March 2011 VA examination, the examiner noted the presence of a tender spermatocele/cyst just exiting the left testes. The examiner noted that the Veteran discussed surgery with a urologist, but the Veteran decided to hold off on surgery. The Veteran reported that he has constant testicular pain of a 3/10 to 6/10 in severity. The Veteran reported that he experiences painful ejaculations. The Veteran was not noted to have a history of dialysis, erectile dysfunction, and no endocrinologic, neurologic, or vascular problems of the urinary tract. The Veteran denied weight gain, urinary flow problems, nocturia, symptoms related to the urinary tract, impotence, recent or recurrent urinary tract infections, or acute nephritis. The Veteran denied any lethargy or weakness. He did not have anorexia. He denied urinary flow problems. He did not report any hesitancy, dysuria, incontinence, surgeries on the urinary tract, impotence, recent urinary tract infections, or recurrent urinary tract infections. The Veteran did not use any absorbent pads. The Veteran did not have any renal colic or bladder stones, history of acute nephritis, or neoplasms of the urinary tract. He has no hospitalizations for urinary tract disease. Based on the evidence above, the Board finds that a compensable rating is not warranted for the Veteran’s left epididymal cyst at any point during the appeal period. The Board acknowledges that the Veteran receives ongoing treatment and medication for his left testicular pain. However, there is no evidence of a urinary tract infection. There is also no evidence of poor renal function or recurrent symptomatic infection. In fact, in the March 2011 VA examination, the Veteran denied any urinary flow problems. In the absence of urinary tract infections, poor renal function, or recurrent symptomatic infection, as is required for a compensable rating under DC 7525, a compensable rating for left epididymal cyst is not warranted at any point during the appeal period. The Board also considered whether a compensable rating under DC 7522 is warranted. However, as the Veteran was not noted to have evidence of erectile dysfunction or penile deformity, DC 7522 is not applicable. As to whether a compensable rating for the Veteran’s left epididymal cyst is warranted on an extraschedular basis, the Veteran contends that DC 7525 did not contemplate the extent of his left epididymal cyst disability because of his testicular pain. The Board referred the Veteran’s claim for extra-schedular consideration and in a July 2020 decision, the Director of Compensation concluded that entitlement to an extra-schedular rating for the Veteran’s left epididymal cyst was not warranted. The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the Veteran has consistently complained of testicular pain and pain upon ejaculation. The Veteran has stated that his testicular pain is so severe that he has difficulty walking. However, it is not evident that the pain the Veteran experiences is related to his left epididymal cyst. Specifically, the June 2009 VA examiner noted that the pain in the left groin area is not likely related to the Veteran’s cysts. Therefore, the first prong of Thun is not met. Moreover, even assuming the first prong of Thun is met, with respect to the second prong of Thun, the Veteran’s disability picture does not exhibit factors such as marked interference with employment and frequent periods of hospitalization. There is no evidence in the record that the Veteran has been hospitalized due to his left epididymal cyst. While the Veteran reported experiencing testicular pain to the point where he has had difficulty walking, there is also no evidence in the record that the Veteran’s left epididymal cyst interferes with his employment. Indeed, during the appeal period, the Veteran has been employed with Denny’s as a dishwasher and with an HVAC company. See February 2016 note; see also February 2020 VA primary care note. Given the above, the Board finds that the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate, and the Veteran is not entitled to a compensable rating for service-connected left epididymal cyst on an extraschedular basis. Accordingly, entitlement to a compensable rating for service-connected left epididymal cyst is not warranted, including on an extraschedular basis. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.