Citation Nr: 21040697 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-58 669A DATE: July 6, 2021 ORDER A compensable rating for left varicocele is denied. FINDING OF FACT The Veteran's varicocele is manifested by left testis atrophy and pain, but not complete atrophy of both testes. CONCLUSION OF LAW The criteria for a compensable rating for left varicocele are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7599-7523. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to April 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for a new VA examination in January 2019. As the requested VA examination was conducted in February 2020, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that he is entitled to a compensable rating because his varicoceles are painful and affect both testes. In the July 2016 NOD, the Veteran reported continuous pain and sterility. The Veteran's representative reported voiding dysfunction in the October 2017 VA 646 Statement. In a June 2020 correspondence, the Veteran voiced concerns about the omission of his right varicocele in the rating of his disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. Hyphenated Diagnostic Codes are used when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, or rating under one Diagnostic Code requires the 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. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the severity of the disorder. The medical and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information, including lay and medical evidence of record, in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran's left varicocele is rated by analogy to 38 C.F.R. § 4.11b, Diagnostic Code 7599-7523. Diagnostic Code 7599 is used to identify unlisted genitourinary disabilities not specifically listed in the Schedule rather are rated by analogy to similar disabilities under the Schedule. See 38 C.F.R. §§ 4.20, 4.27. Pursuant to Diagnostic Code 7523, a noncompensable rating is warranted for the complete atrophy of one testis. A maximum evaluation of 10 percent is warranted for the complete atrophy of both testes. During the February 2014 Male Reproductive System Conditions VA examination, the examiner diagnosed bilateral varicocele, bilateral testalgia (testicular pain), infertile male syndrome, and a voiding dysfunction. The examiner explained that a varicocele is an enlargement of the veins within the scrotum, the loose bag of skin that holds the testicles. A varicocele is similar to a varicose vein that can occur in the leg. Varicoceles are a common cause of low sperm production and decreased sperm quality, which can cause infertility. However, not all varicoceles affect sperm production. Varicoceles can also cause testicles to shrink. The February 2014 VA examiner observed abnormal bilateral testes with the right testicle half to a third of normal and very tender to touch, and the left testicle a third of normal and very tender to touch. The Veteran's private physician, J.K., submitted a December 2014 letter noting the Veteran's varicocele causes him almost continuous pain when upright, and he has mild testicular atrophy. J.K. also stated the Veteran is azoospermic but did not indicate whether this disorder was related to the Veteran's service-connected varicocele. A May 2015 VA examiner diagnosed left varicocele and prostatism during the Male Reproductive System Conditions examination. The examiner noted prostatism results in a voiding dysfunction. The examiner noted the testes were tender with large varicocele on the left epididymis. J.K. and physician assistant J.E. submitted joint letters in December 2019 and June 2020 stating the chronic left scrotal varicocele, which is linked to infertility, atrophy of testicles, and pain daily from scrotal varices at least three times per day. They noted the Veteran also has diagnoses of benign prostatic hyperplasia (BPH) with urinary obstruction, bladder trabeculations, elevated Prostate-Specific Antigen (PSA), erectile dysfunction (ED), a history of urethral stricture, and a family history of prostate cancer. During the February 2020 VA examination for Male Reproductive System Conditions, the VA examiner noted current ED, bilateral varicocele, and BPH. The examiner noted BPH caused elevated PSA and voiding dysfunction, and that the Veteran's ED and BPH were unrelated to his varicocele. The examiner observed the right testis as a third or less than normal and complete atrophy of the left testis. VA and private treatment records demonstrate the Veteran has male reproductive system conditions other than varicocele. However, the Veteran does not contend, and the record does not show that ED and BPH with elevated PSA and voiding dysfunction are related to his service-connected left varicocele. Further, the Veteran's varicocele is not found to cause his voiding dysfunction. Entitlement to service connection for right varicocele and infertility has been referred for the AOJ's consideration; regardless, the severity of right varicocele has been considered in evaluating this claim. Evidence during the claim rating period shows left testis atrophy, but the evidence does not show the same type of impairment for the right testis. Without sufficient evidence of atrophy of both testes, a compensable rating is not warranted. Even if the left testis is considered "removed," Diagnostic Code 7524 provides a noncompensable rating for the removal of one testis. The Board acknowledges the Veteran's complaints of testicular pain and finds that the left varicocele is properly rated under Diagnostic Code 7523 for atrophy of the testis. While pain is not specifically listed in the rating criteria, pain is often a symptom of atrophy. As such, in the absence of urinary tract infection or renal or voiding dysfunction associated with varicocele, the Veteran's symptoms of pain and single testis atrophy are most appropriately rated by analogy under Diagnostic Code 7523. 38 C.F.R. § 4.115b. The Board notes that 38 C.F.R. § 4.115b directs that when a Veteran is rated under Diagnostic Code 7523, VA should consider whether SMC is warranted under 38 C.F.R. § 3.350 for loss of a creative organ. SMC is not warranted for the Veteran's symptoms of testes pain and left testis atrophy; however, the issue is referred as infertility, if found to be secondary to the Veteran's varicocele, would likely warrant SMC. Regardless, SMC is not warranted in the instant matter concerning the left varicocele. 38 C.F.R. § 3.350. (Continued on the next page) At no point during the appeal period does the evidence reflect that the Veteran has complete atrophy or removal of both testes. Complete atrophy of one testis with pain is consistent with the currently assigned noncompensable rating. The Veteran's voiding dysfunction is not found to be a result of his varicocele. Accordingly, the claim for entitlement to a compensable rating for left varicocele is not warranted as the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.