Citation Nr: 21030236 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-00 035 DATE: May 18, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected penile deformity, Peyronie's disease with erectile dysfunction and low testosterone residuals associated with removal of a right testicle (hereinafter, penile disability) is denied. FINDING OF FACT The Veteran's penile disability did not manifest with atrophy or removal of the testes, voiding dysfunction, renal dysfunction, or urinary tract infection. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 20 percent for a service-connected penile disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.7, 4.31, 4.115a, 4.115b, Diagnostic Code (DC) 7599-7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to February 1976. This matter is before the Board of Veterans' Appeal (Board) on appeal from a September 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in April 2018 and November 2020, and the matter has been returned for appellate consideration. The Veteran is seeking an initial evaluation greater than 20 percent for his service-connected penile disability. For the reasons that follow, the Board finds that his claim is not warranted. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's disability is rated 20 percent disabling under 38 C.F.R. § 4.115b, DC 7599-7522 throughout the period on appeal. 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 or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Id. Pursuant to DC 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. This is the only schedular rating provided under this diagnostic code, and there are no other schedular criteria specifically applicable to erectile dysfunction. Under DC 7524, a noncompensable rating is assigned for removal of one testis. 38 C.F.R. § 4.115b. A 30 percent rating is assigned for removal of both testes. Id. The note under DC 7524 states that, in cases of removal of one testis as the result of a service-incurred injury or disease, other than an undescended or congenitally undeveloped testis, with the absence or nonfunctioning of the other testis unrelated to service, a rating of 30 percent will be assigned for the service-connected testicular loss. Testis, undescended, or congenitally undeveloped is not a ratable disability. Id. As such, the Veteran must show a removal of both testes to receive a 30 percent rating under DC 7524. The Veteran was afforded VA examinations in March 2017 and May 2019 to determine the severity of his penile disability. The November 2020 Board decision found that the VA examinations were based on an inaccurate factual premise, thus the VA examinations were deemed inadequate for rating purposes. The Board remanded the claim to determine (1) whether the Veteran's in-service removal of his right testicle was the result of service-incurred injury or disease other than an undescended testicle; and (2) whether the Veteran's left testicle is considered nonfunctioning. To that end, the Veteran underwent a VA examination in February 2021 to determine the nature and severity of his disability. The VA examiner noted that the Veteran underwent a pre-service right inguinal hernia repair and orchiopexy of undescended right testicle in 1968. In 1975, during service, the Veteran complained of pain in his groin area with activity and intercourse. At that time, it was found that the Veteran's right testicle was still not fully descended and very scarred from the 1968 surgery. As such, the right testicle was removed in August 1975. The operative report detailed significant scar tissue in the right inguinal canal and right testicle. Thus, the VA examiner opined that the Veteran's in-service right testicle removal was due to the scarring complications from the 1968 attempted repair of the right undescended testicle. With regards to the left testicle, the VA examiner found it to be non-functioning. The VA examiner stated that the Veteran presented with atrophy of the left testicle and hypofunctioning results in low testosterone with the Veteran receiving testosterone injections every 30 days. The Veteran also endorsed the inability to ejaculate, indicating that the left testicle does not produce enough sperm. In this case, the Veteran is already in receipt of the highest schedular rating under DC 7522. The Board has considered whether a higher rating is warranted under any other diagnostic code but finds that it is not. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In this regard, the other diagnostic codes which address testes do not provide for ratings greater than 20 percent. Under DC 7524, the Veteran must present with the removal of both testes. While the Board notes that the Veteran's left testicle was nonfunctioning, the February 2021 VA examination found the in-service removal of the Veteran's right testicle was not the result of a service-incurred injury or disease, other than an undescended or congenitally undeveloped testis. Although the removal of the right testicle occurred during service, the VA examiner opined that the removal was needed due to scarring from a pre-service (1968) right inguinal hernia repair and orchiopexy of undescended right testicle. In 1975, the Veteran's right testicle was still not totally descended and with significant scar tissue prompting the removal. As such, a 30 percent rating is not warranted pursuant to DC 7524 because the removal of the Veteran's right testicle was due to circumstances unrelated to service. Testis, undescended, is not a ratable disability. See 38 C.F.R. § 4.115b, DC 7524, Note. Diagnostic Code 7523 provides a noncompensable rating for complete atrophy of one testis and a 20 percent rating for complete atrophy of both testes. The Veteran only presented with atrophy of the left testicle, which has not been presented or alleged as due to the Veteran's active duty service. As such, the Veteran has a greater benefit under the currently assigned rating. Diagnostic Code 7529 (for benign neoplasms of the genitourinary system) provides for rating as voiding dysfunction or renal dysfunction, whichever is predominant. However, there is no indication that the Veteran has a renal dysfunction at any point pertinent to the appeal, much less renal dysfunction due to his service-connected penile disability. A higher rating is not warranted for voiding or renal dysfunction in this case. The Board acknowledges the Veteran's lay reports related to his penile disability. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of limitation does not nearly approximate atrophy of both testes, voiding dysfunction, or removal of testicle as the result of a service-incurred injury or disease, other than an undescended or congenitally undeveloped testis. The Board places a high probative value on the February 2021 VA opinion as the examiner provided a reasoned explanation for the opinion after a diligent review of the medical record. For these reasons, a higher schedular rating greater than 20 percent is not warranted. J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Higgins, J.R. 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.