Citation Nr: 21025703 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-36 779 DATE: April 28, 2021 ORDER Entitlement to a 30 percent evaluation, but not higher, for the service-connected spermatic cord neuralgia is granted. REMANDED Entitlement to service connection for a low back condition, to include degenerative arthritis and cyst (“back condition”), is remanded. FINDING OF FACT The Veteran’s spermatic cord neuralgia has been manifested by recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating, but not higher, for spermatic cord neuralgia are met. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.115b Diagnostic Code (DC) 7525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2008 to April 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February and December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2019. The Veteran appealed the December 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In a December 2020 Joint Motion for Partial Remand (JMPR), the CAVC vacated and remanded the entitlement to a compensable rating for spermatic cord neuralgia and service connection claim for the back condition. The specific remand directives are discussed below. Additionally, in March 2021 correspondence the attorney requested a new Board hearing in front of a different Veteran’s Law Judge (VLJ), as the Veteran has new arguments based on the existing records. A VA claimant who has had a Board of Veterans’ Appeals hearing during one stage in the appellate proceedings is not barred from receiving a Board hearing when the claim is at a different stage in the proceedings, namely, following remand from the U.S. Court of Appeals for Veterans Claims. Cook v. Snyder, 28 Vet. App. 330, 332 (U.S. 2017). As such, the Veteran may elect to have another Board hearing; however, in a legacy appeal, such as this case, VLJs who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, if the Veteran desires a hearing with another VLJ concerning the issues on appeal, there shall be a panel decision of three VLJs; and the Veteran has a right to have a hearing before all three VLJs deciding the appeal. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Thus, once additional development is completed pursuant to the remand section of this decision in compliance with the JMPR, the Veteran may be scheduled for another Board hearing or hearings if such action remains desired. Entitlement to a compensable rating for spermatic cord neuralgia The Veteran claims he is entitled to a compensable rating for his spermatic cord neuralgia, due to pain and hospitalizations. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s genitourinary disorder is rated as noncompensable under Diagnostic Code 7599-7525. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, and the last two digits will be “99” for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Diagnostic Code 7525 provides that the disability is to be rated under the criteria for urinary tract infection (UTI). The rating criteria for UTI provides that a 10 percent rating is warranted if the condition requires long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management. A 30 percent evaluation is warranted if the condition is manifested by recurrent symptomatic infection requiring drainage or frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. Higher ratings may be assigned for poor renal function under the criteria for renal dysfunction, or for tubercular infections. 38 C.F.R. § 4.115b. Any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. Under urine leakage conditions (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Under urinary frequency conditions, a 40 percent disability rating is warranted for a daytime voiding interval of less than one hour or awakening to void five or more times per night. A 20 percent disability rating is warranted for a daytime voiding interval between one and two hours or awakening to void three to four times per night. A 10 percent disability rating is warranted for a daytime voiding interval between two and three hours or awakening to void two times per night. Id. Under obstructed voiding conditions, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating is warranted for 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 cc; (2) uroflowmetry demonstrating markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilation every two to three months. A non-compensable disability rating is warranted for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. Id. Turning to the evidence, an August 2013 VA examination report for the male reproductive system was conducted. The Veteran was diagnosed with chronic epididymitis. The examiner indicated the Veteran does not have erectile dysfunction or a urinary tract infraction. Tenderness to the left testicle was noted. A May 2014 testicular sonogram report revealed a significant abnormality; the impression was as follows: “small bilateral hydroceles” and a “left varicocele;” There was “no sonographic evidence for testicular torsion or epididymo-orchitis.” A December 2014 VA examination report for the male reproductive system was conducted. The examiner indicated the Veteran does not have erectile dysfunction or a urinary tract infraction. The examiner noted there is a change in the rated disability because the diagnosis is being corrected. The Veteran was erroneously rated as chronic epididymitis, however, as March 2013 treatment records noted spermatic cord neuralgia as the proper diagnosis. In February 2015, VA treatment discharge information indicated the Veteran had an operation for scrotum-spermatic cord stripping. The final diagnosis was testicular pain refractory to medical management. In October 2015, Urology treatment records noted the Veteran has undergone left and right groin nerve stripping, steroid injection therapies, and have taken medication for his bilateral testicular pain. There are no urinary issues, lower urinary tract symptoms, or hematuria present. In July 2016, VA treatment records reflected an operation consisting of left testicular nerve stripping. In July 2016 correspondence, the Veteran’s attorney argued the Veteran is entitled to a 30 percent evaluation based on recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management under 38 C.F.R. § 4.115a. An October 2016 examination report for the male reproductive system was conducted. The doctor indicated the Veteran does not have erectile dysfunction, urinary tract infection (UTI), renal dysfunction, or a voiding dysfunction. No urinary frequency issues were noted. The doctor concluded there has been no change in the diagnosed spermatic cord neuralgia. The condition is still active. In March 2019, VA treatments indicated the left testicular nerve stripping was completed and the next steps consisted of botox injections. The Veteran reported he was interested in testicle removal to decrease pain. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a 30 percent evaluation is warranted for the service-connected disability. The Board notes the JMPR states, in part: “the Board, however, failed to consider that Appellant’s disability is rated by analogy to UTIs under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7599-7525. Therefore, remand is warranted for the Board to properly consider a compensable rating under the analogous rating for his spermatic cord neuralgia.” In this case, and upon reconsideration of the evidence in conjunction with the applicable regulations, the Board finds there is evidence of evidence of recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management under 38 C.F.R. § 4.115a. Specifically, there is evidence of continuous intensive management as reflected in the October 2015 urology treatment records noted the Veteran has undergone left and right groin nerve stripping, steroid injection therapies, and has taken medication for his bilateral testicular pain. In July 2016, VA treatment records reflected an operation consisting of left testicular nerve stripping. In fact, in March 2019, VA treatments indicated the left testicular nerve stripping was completed and the next steps consisted of botox injections. The Veteran reported he was interested in testicle removal to decrease pain. The objective medical evidence does not demonstrate that the Veteran experiences renal dysfunction, voiding dysfunction, urinary frequency of daytime voiding between one and two hours or awakening to void three to four times per night, or obstructed voiding. The October 2016 VA examiner found there was no renal or voiding dysfunction. During the August 2019 Board hearing the Veteran’s attorney requested an extra-schedular rating arguing the Veteran’s symptoms are not reflected in the current codes. He argued the Veteran should receive a rating for the pain in the testicles themselves. The Veteran testified to receiving spermatic nerve blocks injections to relieve pain. He indicated the nerve blocking procedure was painful so he and his doctor agreed stripping out the nerve would be the better option. Prior to the nerve stripping surgery, he had been to the hospital four times for passing out and pain. If he is standing, moving around, or doing stuff for more than three or four hours, the pain returns. The Board finds referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not warranted. As is explained below, the Veteran is adequately compensated for the symptoms he has in view of the schedular ratings already in effect and assigned herein. The Under Secretary for Benefits or the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). 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. Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017). 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 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, Compensation Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. Id. The evidence of record has not suggested the Veteran suffers from an exceptional impairment. The Board notes the Veteran is receiving a 20 percent rating for a residual scar on the penis associated with a cyst removal. Also, he is receiving 10 percent ratings for the left and right lower radiculopathy illio-inguinal nerves, separately, which is associated with the service-connected spermatic cord neuralgia. To the extent he argues all of his symptoms, including pain, are not compensated, the Board finds this assertion is not persuasive. He underwent nerve stripping for both the left and right side of his testicles and is in receipt of 10 percent ratings for each side. The Board notes he is in receipt of the maximum rating for the radiculopathy of both sides of his testicles under 38 C.F.R. § 4.124a, DC 8530. Furthermore, in accordance with this decision, he has been awarded a 30 percent rating for the service-connected spermatic cord neuralgia. This increase demonstrates the adequacy of the rating schedule for the Veteran’s condition. As such, the Board determines that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). Additionally, in March 2021 correspondence the Veteran’s attorney argued because the Veteran’s pain is focused in the groin area, the musculoskeletal rating could be rated by analogy under diagnostic code 5313-5318. 38 C.F.R. § 4.73. However, the Board finds this argument is not persuasive. Specifically, the cited diagnostic codes are available for specific muscle injuries affecting the flexion, extension, and rotation of the muscle. In this case the Veteran’s injuries involves testicular pain refractory not the flexion, extension, and rotation of a muscle. As such, a rating under diagnostic code 5313-5318 is not warranted. See 38 C.F.R. § 4.73. Accordingly, entitlement to a 30 percent rating, but not higher, for the service-connected spermatic cord neuralgia is granted. REASONS FOR REMAND Entitlement to service connection for a back condition The JMPR states, in part:” the Board failed to ensure compliance with the duty to assist when it did not acquire treatment records from Long Beach VA Medical Center (VAMC).” Thus, the Board finds remand is warranted to obtain the VA treatment records beginning in 2012, after discharge from service. The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Specifically, obtain the Long Beach VA Medical Center records beginning in 2012 to present date. 2. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.