Citation Nr: 21024364 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-33 530 DATE: April 22, 2021 ORDER Entitlement to an initial compensable rating for benign cyst of the right scrotum is denied. FINDING OF FACT The benign cyst of the Veteran’s right scrotum is not manifested by removal or atrophy of both testes, and there is no competent evidence of urinary tract infection, or renal or voiding dysfunction; the disability is not productive of any residual conditions or complications, or functional impact due to the presence of the cyst. CONCLUSION OF LAW The criteria for a compensable disability rating for a benign cyst of the right scrotum are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.115b, Diagnostic Code (DC) 7599-7523, 7525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1976 to February 1979. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) October 2011 rating decision of the Agency of Original Jurisdiction (AOJ). In February 2020 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the February 2020 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. On remand in a September 2020 rating decision, the AOJ granted service connection for a left shoulder disability and service connection for a left knee disability. Accordingly, those issues are no longer on appeal and before the Board for appellate review as the AOJ action constituted a full grant of benefits sought on appeal with respect to those issues. In that rating decision, the AOJ also granted separate service connection for prurigo nodularis with an evaluation of 10 percent effective February 3, 2011. This matter is also not on appeal to the Board at this time. 1. Entitlement to an initial compensable rating for benign cyst of the right scrotum The Veteran is seeking an initial compensable rating for his service-connected benign cyst of the right scrotum. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any 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 evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s benign cyst of his right scrotum is rated as noncompensable under 38 C.F.R. § 4.115b, DC 7599-7523. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. When a disability is not specifically listed, the Diagnostic Code will be built up, meaning that the first two digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last two digits will be “99.” 38 C.F.R. § 4.27. For example, Diagnostic Code 7599 is used to identify unlisted genitourinary disabilities not specifically listed in the Schedule rather are rated by analogy to similar disabilities under the Schedule. See 38 C.F.R. §§ 4.20, 4.27. Hyphenated Diagnostic Codes are utilized when a rating under one diagnostic code requires use of an additional Diagnostic Code to identify the basis for the disability rating assigned. The additional Diagnostic Code is shown after the hyphen. 38 C.F.R. § 4.27. The service connected benign cyst of the right scrotum has been rated by analogy at 0 percent under Diagnostic Code 7523 for complete atrophy of the testis. Under Diagnostic Code 7523, where there is complete atrophy of only one testis, a noncompensable (0 percent) disability rating is warranted; a 20 percent disability rating is warranted for complete atrophy of both testes. 38 C.F.R. § 4.115b. Further, under Diagnostic Code 7524, a noncompensable (0 percent) disability rating is warranted when there is removal of only one testis, and a 30 percent disability rating is warranted for the removal of both testes. Id. This disability may also be rated by analogy to epididymo-orchitis under Diagnostic Code 7525. 38 C.F.R. § 4.20. Diagnostic Code 7525 provides that chronic epididymo-orchitis shall be rated under the criteria for urinary tract infection, or, for tubercular infections, rated according to 38 C.F.R. § 4.88b (infectious diseases, immune disorders, and nutritional deficiencies) or 38 C.F.R. § 4.89 (ratings for inactive non pulmonary tuberculosis in effect on August 19, 1968), whichever is appropriate. See 38 C.F.R. § 4.115b, Diagnostic Code 7525. The rating criteria for urinary tract infection provides that a 10 percent rating is warranted if the condition requires long-term drug therapy, 1-2 hospitalizations per year, and/or intermittent intensive management. A 30 percent rating is warranted if the condition is manifested by recurrent symptomatic infection requiring drainage and/or frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Higher ratings may also be assigned for poor renal function under the criteria for renal dysfunction. 38 C.F.R. § 4.115a. In June 2013 the Veteran was seen for a VA examination to determine the severity of the right-scrotal cyst. The examiner described it as “small,” but that the Veteran’s testicles themselves appeared “normal.” The examiner noted that there was a second cyst on the Veteran’s left epididymis. In November 2017 the Veteran was seen for another VA examination. At the time, the examiner found “no cyst … in right scrotum and right testicle.” The Veteran did not treat his cyst with continuous medication, nor has he had an orchiectomy. There was no voiding or renal dysfunction. The examiner found no erectile difficulties, and the physical examination results were unremarkable. The examiner noted that the cyst was not productive of any residual conditions or complications, and there was no functional impact due to the presence of the cyst. A May 2020 VA examination found no visible evidence of a right scrotal cyst. The Veteran was not treating the cyst with continuous medication, and the Veteran had not had an orchiectomy since the November 2017 VA examination. As with the earlier VA examinations, the Veteran did not endorse renal or voiding dysfunction. A physical examination showed “normal” testes, with no evidence of shrinkage, atrophy, or other abnormalities on either his left or right testicle. The physical examination showed no abnormalities relating to the Veteran’s reproductive system in general. There were no noted residual conditions or complications due to the benign cyst. The Veteran contends that the severity of his symptomatology exceeds that contemplated by a noncompensable disability rating. However, the Veteran lacks the expertise and specialized training in urology to assess the clinical severity of his current right scrotum cyst. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board assigns diminished probative weight to the Veteran’s lay contentions. Here, the Board notes that the Veteran has not produced competent medical evidence to support his lay contentions, and the Board notes that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107 (a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006). In order for a compensable rating to be warranted under DC 7599-7523, there must be evidence of removal or atrophy of both testes, or consideration and rating under other available Diagnostic Codes indicative of symptomatology affecting the kidneys, ureter, bladder, urethra, penis, prostate, neoplasms or renal disorders. Such is not shown in the competent evidence of record. The Board has considered whether a higher rating is available under any additional Diagnostic Codes. However, there is no competent medical evidence of record which reports that the Veteran’s benign cyst of his right scrotum affects his kidneys (Diagnostic Code 7500-7510, 7531), ureter (7511), bladder (7512-7517), urethra (7518-7519), penis (7520-7522), epididymis (7525), prostate (7527), neoplasms (7528-7529), or renal disorders (7530, 7532). All potentially applicable Diagnostic Codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against assigning a compensable disability rating for the Veteran’s service-connected benign cyst of the right scrotum; there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b); Gilbert, supra. The appeal is therefore, denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.