Citation Nr: 21030700 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-16 922 DATE: May 19, 2021 ORDER An extraschedular rating for right testicle atrophy is denied. An extraschedular rating for bilateral inguinal hernia is denied. FINDINGS OF FACT 1. The Veteran is in receipt of special monthly compensation for the anatomical loss or loss of use of one or more creative organs, and the record does not show a diagnosis of a mental condition that conforms with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) that is attributable to the Veteran's right testicle atrophy or any other symptoms attributable to right testicle atrophy that cause impairment of earning capacity. 2. The Veteran is in receipt of a 10 percent rating under 38 C.F.R. § 3.324 based on his reported inability to lift heavy objects, and the impairment caused exclusively by his bilateral inguinal hernia is commensurate with no more than a 10 percent average impairment of earning capacity. CONCLUSIONS OF LAW 1. The criteria for an extraschedular rating for right testicle atrophy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321(b) (2020). 2. The criteria for an extraschedular rating for bilateral inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321(b) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board denied compensable ratings for bilateral inguinal hernia and right testicle atrophy, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a May 2019 Joint Motion for Remand (Joint Motion), the parties agreed that the Board erred in failing to consider the applicability of an extraschedular rating under 38 C.F.R. § 3.321(b) based on the Veteran's reported mental and emotional symptoms and failed to consider the applicability of a 10 percent rating based on multiple, noncompensable, service-connected disabilities that interfere with employment under 38 C.F.R. § 3.324 based on the Veteran's reported inability to lift heavy objects. In a May 2019 order, the Court granted the Joint motion vacating the Board's September 2018 decision and remanding it to the Board for readjudication. In August 2020, the Board granted a 10 percent rating under 38 C.F.R. § 3.324; denied compensable schedular ratings for bilateral inguinal hernia and right testicle atrophy; and remanded the issues of entitlement to extraschedular ratings for bilateral inguinal hernia and right testicle atrophy for referral to the Director of Compensation Service. In January 2021, the Director of Compensation Service determined that extraschedular ratings were not warranted, and the claims have been returned to the Board for further appellate action. The Board notes that in the September 2018 and August 2020 decisions, it was noted that the issue of entitlement to service connection for a mental condition, claimed as secondary to the Veteran's service-connected bilateral inguinal hernia and right testicle atrophy, was inferred by the RO in an August 2016 memorandum. The Board advised the Veteran that if he wishes to file a claim for service connection for a mental condition, he must do so on the application form prescribed by the Secretary. Since the May 2019 Joint Motion and September 2020 Board Remand, the Court issued a decision in December 2020 in which it held that VA cannot compensate psychological symptoms through an extraschedular rating without a diagnosis of a mental condition that conforms with the DSM-5, and it emphasized that extraschedular ratings are only appropriate after VA has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. See Long v. Wilkie, 33 Vet. App. 167, 173-75 (2020); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). The Veteran is again advised that if he wishes to file a claim for service connection for a mental condition on a secondary basis, he must do so on the application form prescribed by the Secretary. Extraschedular Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity. 38 C.F.R. § 3.321(b). To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, VA may assign an extraschedular rating commensurate with the average impairment of earning capacity due exclusively to that disability. Id. An extraschedular rating may not be assigned based on the combined effects of multiple service-connected disabilities. See 82 Fed. Reg. 57830 (Dec. 8, 2017) (eff. Jan. 8, 2018); see also Thurlow v. Wilkie, 30 Vet. App. 231, 239-40 (2018) (holding that applying the amendment barring extraschedular ratings based on the combined effect of multiple service-connected disabilities to all claims pending before VA, the Court, or the Federal Circuit on January 8, 2018, did not have an impermissible retroactive effect). The governing norm in these exceptional cases is a finding that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b). Extraschedular ratings are only appropriate after VA has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. Long, 33 Vet. App. at 173-75. "[W]here a disability proves capable of evaluation by conventional means, it cannot be deemed exceptional." Id. In order to receive compensation for psychological or emotional symptoms, a claimant must have a diagnosis of a mental condition that conforms to the DSM-5. Martinez-Bodon, 32 Vet. App. at 404. Where alleged psychological symptoms are not compensable in the first instance due to a lack of a formal diagnosis, they cannot be compensated through an extraschedular rating, "as this would amount to a backdoor means of obtaining compensation for conditions the rating schedule intends to exclude." Long, 33 Vet. App. at 173-75. 1. Entitlement to an extraschedular rating for right testicle atrophy The Veteran seeks an extraschedular rating for right testicle atrophy due to symptoms of emotional pain and mental anguish, which he asserts are not contemplated by the assigned schedular rating. In September 2016 and September 2019 written statements, the Veteran stated that his social life and manhood has been challenged due to his right testicle atrophy, and he has endured mental and undue stress, emotional pain and suffering, intimacy issues, and marital problems. During his hearings before the Board, the Veteran testified that he feels like he is not a whole man, which has put a strain on his marriage, including his sexual relationship with his wife. He also testified that it affects him mentally to see and feel that he is missing a vital organ. Upon review of the record, the Board finds that an extraschedular rating for right testicle atrophy is not warranted at any time during the period under review. The Veteran underwent a VA examination in May 2013, during which a scrotal ultrasound did not show visualization of the right testicle. The examiner indicated that the Veteran's atrophy of the right testicle did not impact his ability to work. The Veteran underwent another VA examination in December 2020, at which time the examiner indicated that the Veteran had diagnoses of right testicle atrophy, erectile dysfunction, high-grade prostatic intraepithelial neoplasia (PIN), and enlarged prostate. It was noted that the Veteran had symptoms of voiding dysfunction in the form of increased urinary frequency, which was due to his enlarged prostate. The examiner indicated that the Veteran's genitourinary conditions impacted his ability to work in that his urinary urgency made it difficult to complete work tasks. The examiner also appears to suggest that the Veteran's urinary symptoms may be exacerbated by his service-connected condition. The Veteran's service-connected right testicle atrophy has been evaluated under Diagnostic Code 7523, which provides for a noncompensable rating for complete atrophy of one testis and a 20 percent rating for complete atrophy of both testes. 38 C.F.R. § 4.115(b), Diagnostic Code 7523. Atrophy is defined as a wasting away; a diminution in the size of a cell, tissue, organ, or part. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 157 (28th ed. 1994). Thus, the noncompensable rating assigned under Diagnostic Code 7523 specifically contemplates symptoms of wasting away or diminution in the size of a testicle. Additionally, the Veteran is in receipt of special monthly compensation for loss of use of a creative organ. Special monthly compensation is payable to a veteran who, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). Thus, special monthly compensation contemplates any claimed sexual dysfunction due to the anatomical loss of or loss of use of a testicle. With respect to the Veteran's claimed symptoms of mental and emotional pain, the evidence of record does not show that the Veteran has a diagnosis of a mental condition that conforms with the DSM-5. See Martinez-Bodon, 32 Vet. App. at 404. Therefore, he cannot be compensated for psychological or emotional symptoms. See Long, 33 Vet. App. at 173-75. Moreover, as noted above, extra-schedular ratings are only appropriate after VA has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. Id. In this case, the Veteran's claimed mental and emotional symptoms could be adequately evaluated under VA's General Rating Formula for Mental Disorders, which contemplates a variety of mental health symptoms and their effect on social and occupational functioning and familial relations. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders; see also Long, 33 Vet. App. at 173-75 (holding that the Veteran's claimed symptoms of reduced self-esteem, social impairment, anxiety, and depression were not exceptional so as to warrant an extraschedular rating because they could be adequately evaluated under VA's General Rating Formula for Mental Disorders, which expressly contemplates, among other things, social impairment). Accordingly, an extraschedular rating based on claimed mental and emotional symptoms is not warranted. See id. With respect to the urinary symptoms noted during the December 2020 VA examination, the Veteran has not claimed entitlement to an extraschedular rating based on these symptoms. However, to the extent that he is, the Board finds that an extraschedular rating is not warranted. The VA examiner indicated that the Veteran's urinary symptoms are due to an enlarged prostate. Although the examiner suggested, without rationale, that the Veteran's prostate and urinary symptoms may be exacerbated by his service-connected condition, an extra-schedular rating may only be assigned for impairment in earning capacity due exclusively to the disability at issue and may not be assigned based on the combined effects of multiple service-connected disabilities. See 82 Fed. Reg. 57830 (Dec. 8, 2017) (eff. Jan. 8, 2018); see also Thurlow, 30 Vet. App. at 239- 40. Additionally, compensation for a disability that is aggravated by a service-connected disability is limited to the degree that the aggravation is shown, which involves a deduction of the baseline level of disability from the Veteran's rating. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Therefore, any claimed urinary symptoms based on aggravation by a service-connected disability must be addressed through a claim of secondary service connection, not an extraschedular rating. Moreover, the Rating Schedule specifically provides for ratings for prostate gland injuries, infections, and hypertrophies and voiding dysfunction. See 38 C.F.R. §§ 4.115a, 115b, Diagnostic Code 7527. Accordingly, any claimed urinary symptoms could be adequately evaluated under the Rating Schedule and must be addressed through a claim for secondary service connection. The Veteran is advised that if he wishes to file such a claim, he must do so on an application form prescribed by the Secretary. The Board acknowledges the Veteran's testimony during the June 2020 Board hearing that his right testicle atrophy has made it impossible to work. He stated that he could not run, and it hurt to walk. However, there is no evidence of record to suggest that any claimed symptoms of pain or difficulty walking or running have been attributed to the Veteran's right testicle atrophy. Indeed, neither VA examiner noted any symptoms of pain related to the Veteran's right testicle atrophy, and urology treatment records throughout the appeal period show that the Veteran consistently denied any pain related to his right testicle atrophy. Additionally, treatment records during the period under review show that the Veteran reported engaging in 150 minutes of moderate intensity exercise per week and muscle strengthening activities two or more days per week. The Board finds the statements made for purposes of seeking treatment to be significantly more credible and probative than statements made to VA for purposes of seeking compensation. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In sum, the preponderance of the evidence shows that the Veteran's right testicle atrophy does not present an exceptional disability picture that renders the rating schedule inadequate. Therefore, there is no doubt to be resolved and an extra-schedular rating for the disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an extraschedular rating for bilateral inguinal hernia The Veteran seeks an extraschedular rating for his service-connected bilateral inguinal hernia due to his inability to lift heavy objects for fear of recurrence of his hernias. During the December 2015 Board hearing, the Veteran testified that although his hernias have not recurred, he wears a jock strap and back support to prevent hernia recurrence. He also indicated that he feels a pulling sensation in the location of the hernias when he lifts something heavier than a few pounds. During the June 2020 Board hearing, the Veteran testified that he is able to lift no more than a case of bottled water or a large bag of rice, which weighs about 25 pounds. He stated that he cannot run, and it hurts to walk. The Veteran also testified that he stopped working in 2012 and that he can no longer perform his prior jobs working for Amazon and for UPS as a driver's helper because he cannot lift heavy objects, and he does not think he would be able to meet his production goals. He also stated that he can no longer work his prior job in security because he is weak and cannot fight. The Veteran's service-connected bilateral inguinal hernia has been assigned a noncompensable rating under Diagnostic Code 7338, which provides for a noncompensable rating for an inguinal hernia that is small, reducible, or without true hernia protrusion; or where it is not operated, but remediable. 38C.F.R. § 4.114, Diagnostic Code 7338. A 10 percent rating is warranted for a recurrent postoperative hernia that is readily reducible and well supported by truss or belt. Id. A 30 percent rating is warranted for a small, postoperative recurrent hernia, or an unoperated irremediable hernia that is not well-supported by truss or that is not readily reducible. Id. A maximum schedular rating of 60 percent is warranted for a large, postoperative, recurrent hernia that is considered inoperable that is not well-supported under ordinary conditions and is not readily reducible. Id. As previously noted, the Veteran is in receipt of a 10 percent rating under 38 C.F.R. § 3.324, which provides that when a veteran is suffering with two or more separate, permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to award a 10 percent rating, but not in combination with any other rating. 38C.F.R. §3.324. Upon review of the record, the Board finds that an extraschedular rating for bilateral inguinal hernia is not warranted at any time during the period under review. Service treatment records show that the Veteran was diagnosed with bilateral inguinal hernias in 1977 and underwent a left inguinal hernia repair in August 1977 and a right inguinal hernia repair in March 1991. The Veteran underwent a VA examination in May 2013, during which he reported being a warehouse stocking person by profession and described functional impairment in the form of being unable to lift heavy objects due to fear of a hernia recurrence. A physical examination revealed no evidence of a hernia, and there was no indication for a supporting truss or belt. The examiner indicated that there were no other pertinent findings, scars, complications, conditions, signs, or symptoms. Subsequent treatment records show no evidence of a hernia recurrence during the period on appeal, and the Veteran denied any symptoms of abdominal or back pain in April 2015 and February 2016. In October 2016, the Veteran reported right inguinal pain when trying to lift anything of appreciable weight, which he indicated significantly affected his lifestyle and job. The assessment was right inguinal pain most likely due to scar tissue, and the treatment provider referred the Veteran to prosthetics for a hernia belt. In April 2017, the Veteran reported that his right groin felt better with an inguinal hernia belt. The Veteran underwent another VA examination in December 2020, during which he reported undergoing surgical repair of inguinal hernias during service. He denied any pain or current symptoms, and a physical examination revealed no evidence of a hernia. The Veteran denied any hernia recurrence but stated that he wore a back brace and jock support and did not lift anything heavy due to fear of recurrence. He also reported being unable to work because he could not do any heavy lifting. Although the Veteran testified that he cannot run and it hurts to walk, there is no evidence of record to suggest that such symptoms have been attributed to his repaired inguinal hernias, and his assertions are not consistent with the evidence of record. The record shows that the Veteran did not report any symptoms of pain during the May 2013 VA examination and specifically denied any pain related to his inguinal hernias during the December 2020 VA examination. Although the Veteran reported right inguinal pain when trying to lift anything of appreciable weight in December 2016, which subsequently improved with a hernia belt, there is no evidence that his repaired hernias affect his ability to walk or run. Moreover, treatment records during the period under review show that the Veteran reported engaging in 150 minutes of moderate intensity exercise per week and muscle strengthening activities two or more days per week. See Caluza, 7 Vet. App. at 511; Cartright, 2 Vet. App. at 25. The Board finds that the only credible functional impairment attributable to the Veteran's service-connected inguinal hernias is an inability to engage in heavy lifting due to fear of hernia recurrence and right inguinal pain or a pulling sensation when attempting to lift heavy objects. While such symptoms could interfere with jobs that require heavy lifting, they would not interfere at all with jobs that do not require heavy lifting. The record shows that despite the Veteran's fear of hernia recurrence, he served 18 years in the Air Force after his left inguinal hernia repair and four years after his second hernia repair. From 2007 to 2009, he reportedly worked as a security officer at a casino, and in January 2009 he indicated that he was gainfully employment without any loss of work time. Although the Veteran testified that he did not believe he could meet his production requirements at Amazon anymore, there is no evidence of record showing that he actually lost any time from work at Amazon and UPS due to his inability to engage in heavy lifting. As noted above, extraschedular ratings are only appropriate after VA has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. See Long, 33 Vet. App. at 173-75. Here, the Board finds that all the symptomatology and impairment caused by the inguinal hernia are contemplated by schedular rating criteria. In this regard, the Veteran's functional impairment is contemplated and compensated under section 38 C.F.R. § 3.324. Additionally, hernia recurrence and the need for a supportive truss or belt is explicitly contemplated in Diagnostic Code 7338, and his complaints of pulling pain when lifting are implicitly contemplated. Moreover, to the extent his complaints of pulling pain are not contemplated by Diagnostic Code 7338, such complaints could be adequately addressed under 38 C.F.R. § 4.73, Diagnostic Codes 5319 and 5320, involving abdominal muscle impairment. See 38 C.F.R. § 4.56(c) (cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement). In sum, the preponderance of the evidence shows that the Veteran's bilateral inguinal hernia disability does not present an exceptional disability picture that renders the rating schedule inadequate. Therefore, there is no doubt to be resolved and an extraschedular rating for the disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.