Citation Nr: 21028361 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-23 391 DATE: May 11, 2021 ORDER A rating in excess of 30 percent for traumatic epididymitis with left orchitis is denied. FINDING OF FACT The weight of the evidence is against finding epididymitis with left orchitis causes loss of use of a creative organ or any symptom or impairment not capable of being assessed by the rating schedule. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for traumatic epididymitis with left orchitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.31, 4.115b, Diagnostic Code (DC) 7525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from June 1966 to February 1969. 1. A rating in excess of 30 percent for traumatic epididymitis with left orchitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's epididymitis with left orchitis is rated 30 percent under Diagnostic Code 7525 for epididymo-orchitis, which directs the evaluator to rate the disability as urinary tract infection. The rating criteria for urinary tract infection provide for a maximum, 30 percent rating for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. The criteria also direct that poor renal function should be rated as renal dysfunction. 38 C.F.R. §§ 4.115a, 4.115b. The Veteran currently receives the highest rating available for epididymo-orchitis absent renal involvement, and the evidence does not show renal involvement. The December 2016 and January 2020 examiners specifically found the Veteran did not have renal dysfunction, and the November 2009 examiner made no notation of renal dysfunction. Similarly, the Veteran has not asserted having renal dysfunction as part of his epididymitis with left orchitis. Additionally, any urinary or voiding symptoms have been compensated by the rating for cystitis with episodic incontinence and assigning an additional rating for those symptoms would be impermissible pyramiding. See Esteban, 6 Vet. App. at 262. Therefore, the 30 percent rating assigned is the maximum available under the rating criteria. The Veteran's attorney requested consideration of entitlement to special monthly compensation for loss of use of a creative organ in December 2010 correspondence. The evidence shows the Veteran has experienced erectile dysfunction throughout the period on appeal. However, the weight of the evidence is against finding his erectile dysfunction is a symptom of epididymitis with left orchitis. During the November 2009 examination, the Veteran denied erectile dysfunction; therefore, the examiner did not provide an opinion on its etiology. A VA treating provider in June 2015 noted left testicle and groin pain since the in-service injury and surgery, which also caused ED (erectile dysfunction) experienced since that time. The December 2016 and January 2020 examiners found the Veteran's erectile dysfunction was not at least as likely as not due to his epididymitis with left orchitis. The Board finds the VA examiners' opinions highly probative as they more directly addressed the question at hand. The Veteran is not competent to determine the cause of erectile dysfunction, and the record does not include other competent evidence on this question. See Jandreau, 492 F.3d at 1377. Therefore, the weight of the evidence is against finding erectile dysfunction is due to or a symptom of the service-connected epididymitis with left orchitis. Moreover, the evidence shows no abnormality of the left testicle, which could result in loss of use. The November 2009 examiner found the left testicle was not atrophied, and an April 2017 scrotal sonogram found small left hydrocele but no solid mass or other abnormality. There is no evidence or assertion that the Veteran's epididymitis with left orchitis rendered him sterile. As such, special monthly compensation for loss of use of a creative organ is not appropriate. The Veteran's main contention is that he should receive an extra-schedular rating based on the pain associated with his disability. The Veteran has consistently reported left testicular, or groin, pain that feels like an ice pick. The November 2009 examiner documented tenderness to the left testicle. The December 2016 examiner noted severe pain, made worse with prolonged sitting. During the January 2020 examination, the Veteran reported daily pain, 7/10, in the left groin/testicular area. He described the pain as sharp and piercing with only a little relief from a supportive belt and interfering with his ability to lift more than 15 pounds. VA treatment records similarly document complaints of pain. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court of Appeals for Veterans' Claims (Court) set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. The Court has held that the first step in Thun requires truly exceptional or unusual symptoms and is not satisfied by the mere absence of an alleged symptom or effect from the diagnostic criteria. Long v. Wilkie, 33 Vet. App. 167 (2020). In this case, the Board finds the first Thun step is not met, because the rating schedule is adequate to rate the Veteran's disability. The 30 percent rating criteria for epididymo-orchitis/urinary tract infection address and compensate for a condition "requiring continuous intensive management." The term "requiring continuous intensive management" is not defined. VA examinations and treatment records reveal that the Veteran is not receiving active treatment for epididymitis with left orchitis and has no current symptoms other than pain. The Veteran has reported that his pain must be managed by wearing a supportive belt and avoiding strenuous activities. Moreover, it is a reasonable inference to presume that pain is a symptom of many of the disabilities of the genitourinary system, including epididymo-orchitis and urinary tract infection. Given that the Veteran's disability does not present with other symptoms requiring management and this language from the rating criteria is broad, the Board finds the Veteran's pain symptom is compensated by the 30 percent rating assigned under Diagnostic Code 7525. Additionally, the collective rating schedule addresses pain and the resulting functional impairment in considerable detail. It cannot be said that pain is a symptom incapable of evaluation by conventional rating means, and thereby exceptional, to satisfy the first Thun step. See Long, 33 Vet. App. at 167. Regarding the remaining steps, the Veteran's attorney has asserted that the Veteran's pain is so severe he is "unable to move or work" and is affecting him economically. See November 2020 Brief. The Court in Yancy v. McDonald noted that the first Thun step addresses symptoms, and the resulting effects of those symptoms are addressed in the second step. 27 Vet. App. 484, 494 (2016). As the Veteran's disability picture fails to satisfy the first step in Thun, the Board need not address the remaining steps. See Chudy v. O'Rourke, 30 Vet. App. 34, 39 (2018). Finally, the Veteran's attorney argues the VA examinations are inadequate to evaluate the Veteran's disability, because the examiners were unable to examine the Veteran's left testicle due to pain. See November 2020 Brief. The attorney does not suggest any symptoms or impairment that were missed by the VA examinations nor does he offer an alternative means for obtaining objective evaluation of the Veteran's disability. The Board finds the remaining evidence of record, including evaluations from the November 2009 examination and April 2017 scrotal sonogram and the Veteran's own reports, provides similar evidence to that which would have been collected by the December 2016 and January 2020 examiners. More importantly, the Veteran has not asserted entitlement to a higher rating based on any symptom of his epididymitis with left orchitis, other than pain. To the extent that the examiners may not have been able to effectively measure or opine as to the resulting effects of the Veteran's pain, those resulting effects are not determinative in this decision. See Yancy, 27 Vet. App. at 494; Chudy, 30 Vet. App. at 39. The Veteran is not prejudiced. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a). Unfortunately, the Board concludes that a rating in excess of 30 percent for epididymitis with left orchitis is not warranted at this time. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.