Citation Nr: 21030312 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-12 431 DATE: May 18, 2021 ORDER Entitlement to an initial rating of 10 percent, but no higher, for a left epididymal cyst is granted. FINDING OF FACT Throughout the period on appeal the Veteran's left epididymal cyst was marked by pain and discomfort, analogous to a single, painful benign neoplasm of the skin. CONCLUSION OF LAW The criteria for entitlement to a rating of 10 percent, but no higher, for a left epididymal cyst have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.115a, 4.115b, 4.118, Diagnostic Codes 7525, 7804, 7819 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2002 to January 2006 and from June 2007 to June 2008, with multiple tours of service in Iraq. The Veteran also has a period of active duty for training (ACDUTRA) with the United States Air Force from June 2012 to October 2012. This case comes on appeal of an August 2013 rating decision. The Veteran testified before the Board in August 2019. In October 2020, the Board remanded this issue for further development. 1. Entitlement to an initial compensable rating for a left epididymal cyst Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation 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. Generally, separate disability 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 condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). The Veteran filed a claim of entitlement to service connection for an epididymal cyst in February 2012. In August 2013, the agency of original jurisdiction (AOJ) granted the claim, assigning an effective date of April 1, 2008, the first month after the Veteran's separation from service. The Veteran filed a timely notice of disagreement with that decision; therefore, the Board reviews the propriety of the rating from the initial effective date. In granting the Veteran's claim, the AOJ noted that the Code of Federal Regulations does not contain a specific disability rating schedule for epididymal cysts and, accordingly, rated the disability by analogy. 38 C.F.R. § 4.20. Thus, the AOJ rated the disability under 38 C.F.R. § 4.115b, Diagnostic Code 7525, for epididymo-orchitis. Diagnostic Code 7525, in turn, instructs the rater to evaluate the disability as a urinary tract infection. Under 38 C.F.R. § 4.115a, a 10 percent rating is warranted for urinary tract infections that require long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management. A 30 percent rating is warranted for recurrent symptomatic infection requiring drainage, frequent hospitalizationi.e., more than two times per yearand/or continuous intensive management. Service treatment records show the Veteran was seen in March 2008 for a left testicular lump that had been discovered during the Veteran's deployment. At the time, the Veteran expressed continued discomfort. The Veteran underwent a VA examination in January 2013. At that time, the examiner noted a small, firm nodule, irregular in shape, and less than one centimeter in length on the upper pole of the left testis. There were no other symptoms attributed to the cyst at that time. The Veteran was afforded a new VA examination in November 2020. At that time, the Veteran's reported symptoms included left testicle pain, erectile dysfunction, and increased urinary frequency and incontinence. There was no history of orchiectomy, chronic epididymitis, epididymo-orchitis, or prostatitis. The left epididymis was tender to palpation, and a small cyst was felt on the proximal aspect of the testicle. The examiner specifically noted that, despite the additional diagnoses of erectile dysfunction, urinary frequency, and incontinence, medical literature did not support an epididymal cyst as a risk factor or cause for these conditions and opined that they were not medically related. Other post-service treatment records note the presence of an epididymal cyst, but do not contain any elaboration on its symptoms or effects. A March 2018 ultrasound showed normal testicles with normal Doppler flow, and a subcentimeter left epididymal head cyst. Based on the evidence of record, it is clear that the primary symptoms caused by the Veteran's epididymal cyst are pain and discomfort. The Board acknowledges the Veteran's hearing testimony in which he attributed his erectile dysfunction and urinary troubles to the cyst. However, the Veteran, as a layperson, is not competent to make such medical assertions. There is no competent evidence of record to demonstrate a linkage between the two. Thus, the only probative opinion on that matter is the November 2020 examiner's conclusion that medical literature shows no relationship between the epididymal cyst and the Veteran's other described symptoms. The Board further notes that the Veteran is already service connected for erectile dysfunction, secondary to his service-connected PTSD. Given the recorded symptoms of the epididymal cyst, the disability does not meet the requirements for a compensable rating under Diagnostic Code 7525. The Board observes, however, that as the cyst does not represent an active infection requiring treatment with medication, the instructions of Diagnostic Code 7525 may not represent the most appropriate analogy for the disability. Indeed, the Board acknowledges that the Veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and VA has a duty to maximize benefits. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In that regard, the Court of Appeals for Veterans Claims (Court) has clarified that it is possible for a disability to include symptoms not contemplated by the primary diagnostic code for that disability. However, prior to referring a claim for extraschedular consideration, VA has a duty to first consider whether the rating schedule has been exhausted, to include rating by analogy, or whether secondary service connection is warranted for symptoms of a disability that may be contemplated elsewhere in the rating schedule. Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019). The Board has reviewed the rating schedule and has determined that the Veteran's epididymal cyst presents similarities in terms of development and impairment to that of a benign skin neoplasm, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7819. That diagnostic code provides that the disability is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or impairment of function. Here, the Board finds, given the Veteran's symptoms of pain and discomfort, the appropriate analogy in this case is to a disability such as a painful scar. Accordingly, the criteria found in Diagnostic Code 7804, for unstable or painful scarring, is most applicable. That diagnostic code provides that a 10 percent rating is warranted for one or two scars that are unstable or painful. Given the Veteran's consistent reports of pain related to the left epididymal cyst both pre- and post-separation from service, the Board finds that a 10 percent rating is warranted throughout the period on appeal. As the disability is singular in nature, it is not equivalent to 3 or more painful or unstable scars. Therefore, a rating in excess of 10 percent under this code is not warranted. The Board notes that 38 C.F.R. § 4.118 was updated in August 2018, during the pendency of the claim, however no changes were made that would affect the Veteran's rating under Diagnostic Code 7804. (Continued on Next Page) Accordingly, throughout the period on appeal, the Veteran is entitled to an initial rating of 10 percent, but no higher, for a service-connected left epididymal cyst. To this extent, the appeal is granted. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.