Citation Nr: 22014751 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 11-05 355 DATE: March 14, 2022 ORDER Entitlement to an initial compensable evaluation for left epididymitis (also claimed as varicocele and swollen left testicle) is denied. FINDING OF FACT The Veteran's service-connected left epididymitis (also claimed as varicocele and swollen left testicle) does not involve any infection or treatment for infection, but does result in symptoms of pain/tenderness and swelling of the left testicle that impact the Veteran's sexual functioning, but do not affect his ability to walk or stand and otherwise do not have any impact on occupational functioning or ability to perform physical tasks associated with work or self-care. CONCLUSION OF LAW The criteria for entitlement to an initial compensable evaluation for service-connected left epididymitis (also claimed as varicocele and swollen left testicle) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code (DC) 7120, 4.115a, and 4.115b, DC 7525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 through January 1971. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in November 2016. A transcript is of record. The procedural history prior to February 2021 has been set forth in prior Board decisions and will not be repeated here. Overview of the November 2021 JMR Most recently, the Board denied the above-listed claim in a February 2021 Board Decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), and the CAVC issued an order granting the parties' November 2021 Joint Motion for Remand (JMR) to set aside the February 2021 Board Decision and remanded the case back to the Board for compliance with the JMR. As discussed in the February 2021 Board Decision and the November 2021 JMR, the Board previously determined, and here finds again, that the Veteran has not had epididymitis during the period on appeal (2012 to the Present); rather, the symptoms of his service-connected testicular condition are due to a varicocele. Notwithstanding that there is evidence that the varicocele predated his active service, see, e.g., August 2012 Addendum Opinion and February 1970 STR (noting left testicular pain for three years due to a moderate-sized left varicocele), the grant of service connection for the current testicular condition represents a favorable finding that the Board will not disturb. The November 2021 JMR found that the Board's conclusion about DC 7120 (discussed below) in its February 2021 decision was "erroneous because it improperly required Appellant to satisfy all of the objective diagnostic criteria." The Court cited to Stankevich v. Nicholson, 19 Vet. App. 470, 472-473 (2006), for the proposition that "the very essence of an undiagnosed illness is that there is no diagnosis . . . '[t]he function affected, anatomical localization, or symptomatology of an undiagnosed illness cannot be analogous if the Board applies that rating criteria [of the listed condition] to require objective evidence of a diagnosed [unlisted] disability . . ." The Board notes that this case does not involve an undiagnosed illness. Nevertheless, the Board interprets the JMR's citation to Stankevich to direct the Board to (1) not require any specific diagnosis listed in the criteria and (2) to engage in holistic analysis of the disabling effects of the service-connected disability in the context of the disabling effects associated with the diagnostic code being considered by analogy (as elucidated by the symptoms listed in the rating criteria, but not requiring identical symptoms). The JMR does not provide further guidance other than emphasizing that the Board should "properly consider Appellant's entitlement to an analogous rating under DC 7120 without requiring that he satisfy all of the objective diagnostic criteria of the listed DC." The JMR's use of "diagnostic criteria" rather than "rating criteria" creates some ambiguity in its directive. DC 7120 do not contain diagnostic criteria if that term is meant to imply criteria by which varicose veins are diagnosed; rather, a list of symptoms and functional impacts that indicate the severity of a diagnosed case of varicose veins (or, as here, another diagnosis being rated by analogy). In this case, the diagnosis of a varicocele is established, and the Board has previously determined, and determines again, that the diagnosis of varicocele is analogous to varicose veins which are rated under DC 7120. There is no issue with respect to the diagnosis and the Board does not herein require the Veteran to meet any diagnostic criteria (much less objective diagnostic criteria) to the extent that term means signs and symptoms used to identify the disease entity. As noted in the February 2021 Board Decision: The December 2017 JMR noted dictionary definitions indicating that "any vein may become varicose" and that varicocele is "a condition in males characterized by varicosity of the veins." Therefore, the Board acknowledges that the Veteran's varicocele is characterized by varicosity of the veins and DC 7120 could be applicable by analogy as both involve varicosities of veins. The Board reiterates that, as it interprets the December 2017 JMR, the Veteran's varicocele of the left testicle (also diagnosed as epididymitis) meets all of the diagnostic criteria (i.e., has been diagnosed as a specific condition according to medically accepted criteria) to be rated by analogy under DC 7120. This is a directive by the Court, so the Board again adopts this conclusion as its own. This does not mean that a compensable rating is warranted. As noted below, DC 7120 permits a noncompensable rating as well as various compensable ratings. Meeting or approximating the rating criteria is a threshold determination to obtaining a rating by analogy. The Veteran meets that threshold criteria for a rating under DC 7120 by analogy, so the question now before the Board is whether the Veteran's symptoms and functional limitations of a varicocele of the left testicle are analogous in type, frequency, and severity as those necessary to obtain a compensable rating under DC 7120, i.e., are analogous to (but not necessarily the same as) the symptoms and functional impairments listed in the rating criteria included under DC 7120. The Board notes that the JMR did not find any deficiency in the analysis of the claim under DC 7525. Scope of Claim and DC 7525 The issue before the Board is whether the symptoms of the Veteran's service-connected testicular condition (most commonly diagnosed, including by his treating physician, as varicocele of the left testicle) warrants a compensable rating. His service-connected left testicle condition is currently rated under 38 C.F.R. § 4.115b, DC 7525 (epididymo-orchitis, chronic only). DC 7525 indicates the condition should be rated as a urinary tract infection. 38 C.F.R. § 4.115a contains the criteria for rating a urinary tract infection. Under section 4.115a, a 10 percent rating is warranted for urinary tract infection characterized by long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating is warranted for urinary tract infection characterized by recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) and/or requiring continuous intensive management. As noted above, the evidence of record, including the November 2020 Private Medical Opinion, establishes that the Veteran has not had testicular infections (epididymitis) at any time during the period on appeal. See also December 2020 Correspondence from Representatives (arguing that rating as epididymitis (under DC 7525) is improper and stating that the Veteran "does not have Epididymitis. He does not suffer from infections."); November 2016 Board Hearing Transcript (stating that the Veteran "does not suffer from bladder infection"). The Veteran has not had an infection or symptoms analogous to infection associated with his service-connected condition. Moreover, his condition does not require drug therapy, has not resulted in 1-2 hospitalizations per year, and has not required intermittent intensive management. The Veteran's service-connected condition also does not result in symptoms or functional limitations different from, but similar to, those listed in the rating criteria. The Veteran has not argued that he does meet or more closely approximates the criteria for any compensable rating under DC 7525. Therefore, the symptoms of his service-connected testicular condition have not met the criteria for any compensable rating under DC 7525 (particularly including the rating criteria for urinary tract infections). DC 7120: Overview and Rating Criteria The Veteran, through his representatives, argues that the condition should be rated under 38 C.F.R. § 4.104, DC 7120 (varicose veins) by analogy. See December 2020 Correspondence from Representatives (arguing that a 20 percent rating is warranted under DC 7120). Under DC 7120, a noncompensable rating is warranted for asymptomatic palpable or visible varicose veins. A 10 percent rating is warranted for varicose veins characterized by intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent rating is warranted for varicose veins characterized by persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for varicose veins characterized by peristent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for varicose veins characterized by peristent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is warranted for varicose veins with the following findings attributed to the effects of varicose veins: Massive board-like edema with constant pain at rest. Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, VA must evaluate the veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. The criteria for 10 and 20 percent ratings under DC 7120 include edema (intermittent and persistent, respectively). The April 2020 JMR required that VA obtain a clarifying medical opinion that addressed whether the swelling reported by the Veteran and noted by the VA examiners can be appropriately characterized as "edema." As noted above, the November 2020 VA Addendum Opinion concluded that the Veteran probably did not have edema, but that the symptoms the Veteran experienced were functionally similar to edema (pain, swelling, sense of fullness). Also, the November 2020 Private Medical Opinion opined that the Veteran experiences "edema and pain...periodically now." DC 7120: Analysis 10 Percent Rating Criteria The Board will first address whether the Veteran meets (by analogy) or more closely approximates (by analogy) the criteria for a 10 percent rating under DC 7120. The evidence is against finding that the Veteran meets the criteria for a 10 percent rating. The Veteran's "periodic" edema is not of an extremity, nor is there aching or fatigue "in the leg after prolonged standing or walking." Because the rating criteria specifically contemplate symptoms in an "extremity" and/or in a "leg after prolonged standing or walking", the Veteran's symptoms of his service-connected condition do not meet the criteria under DC 7120. This is merely a threshold finding as those criteria are not directly applicable to a testicular condition, so the Board will now proceed to analyzing the criteria by analogy. The Veteran argues that the "proper analogy" for his condition is DC 7120. See December 2020 Correspondence from Representatives. As already noted above, the December 2017 JMR noted dictionary definitions indicating that "any vein may become varicose" and that varicocele is "a condition in males characterized by varicosity of the veins," so DC 7120 is applicable by analogy as both DC 7120 and the Veteran's varicocele involve varicosities of veins. In determining what sorts of symptoms and functional disabilities would warrant a 10 percent rating by analogy to DC 7120, it is pertinent and significant that the rating criteria for a 10 percent rating under DC 7120 specifically contemplate varicose veins of an extremity such as the leg and explicitly link the symptoms to difficulties associated with "prolonged standing or walking." Therefore, the Board finds that a 10 percent rating would most closely be met if, although the varicosities did not directly affect a lower extremity, the service-connected varicosities (here a varicocele) affected the Veteran's ability to stand or walk, particularly for prolonged periods. However, the Board has also considered rating by analogy to DC 7120 where the varicosities have a similar impact on functioning albeit of a different body part or cause occupational impairment of a similar severity due to symptoms listed in the criteria (e.g., edema) or due to symptoms analogous to those in the rating criteria. On this latter point, it is notable that the parties to the November 2021 JMR focused on edema which is a symptom explicitly included in the criteria. The Board emphasizes that, although the edema associated with the Veteran's condition is obviously not edema of the lower extremities, this is not the basis of its analysis here. The Board will not deny the claim because the edema does not directly affect the lower extremities or even because, as the Board finds below, that the edema does not affect the functioning of the lower extremities. Rather, the Board has considered whether the "periodic edema" due to the Veteran's service-connected condition impacts the functioning of one or more of the Veteran's body parts or his overall functioning such that it would be analogous in severity, impact on activities of daily living, and/or occupational impairment to the "intermittent edema of extremity . . . after prolonged standing or walking." The 10 percent rating under DC 7120 for varicose veins emphasizes disabling effects of the extremities (typically the lower extremities) and the functional impact the varicose veins have with respect to using the extremities. While the December 2017 JMR indicated the Veteran's varicocele involves a similar physiological process to the varicose veins addressed by DC 7120 (varicosities of veins), the evidence is against finding that the Veteran's varicocele has an impact on his ambulation, ability to stand, or other physical abilities relating to his ability to perform activities of daily living (other than sexual dysfunction as discussed below), work or perform occupational tasks. For example, the February 2012 VA examination noted that the Veteran reported no further swelling after service, but that he had "intermittent pain worse with sex." Further, the examiner opined that the Veteran's diagnosed condition (varicocele) had no impact on the Veteran's ability to work. Similarly, the May 2014 VA examination noted tenderness present in the testes and epididymis, but did not indicate an impact on ambulation, standing, lifting, or any other sort of physical activity associated with occupational functioning or activities of daily living. The examiner did note "considerable pain from the testicles, most especially the left testicle" and that he had erectile dysfunction. His treating medical provider noted that he has periodic edema and pain, but did not further discuss functional impacts associated with pain and edema in his testicle. See November 2020 Private Medical Opinion. The private provider did note that, in the military, the Veteran's condition was "highly aggravated by driving a truck" which does suggest a past functional impact related to driving. However, the private provider did not indicate any similar or ongoing functional impact post-military. The most significant impact identified by the Veteran in various examinations and filings was on his sex life. Notably, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VA Gen. Coun. Prec. 92004 (Sep. 17, 2004) ("[T]he key consideration in determining whether rating under more than one diagnostic code is in order is whether the ratings under different diagnostic codes would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping."). The Veteran is diagnosed with and has been service-connected for erectile dysfunction, so that associated functional limitation has been addressed by his award of special monthly compensation and providing an additional separate rating for the impact on the Veteran's sexual functioning is not appropriate. See 38 C.F.R. § 4.14. As noted above, there is evidence of record that driving a truck aggravated the Veteran's symptoms during service and caused the Veteran pain. Otherwise, the record does not indicate impacts on occupational functioning, interference with the use of extremities, or other functional impacts contemplated by DC 7120. The Veteran has made no allegations as to how the testicle condition affected his functional abilities at any of his post-service occupations, and, again, the impact on his personal life with sexual functioning is contemplated by the special monthly compensation rating for erectile dysfunction. To reiterate, the rating schedule is designed to compensate for limitation of activity imposed by the disabling condition from the point of view of the Veteran working or seeking work. 38 C.F.R. §§ 4.1 and 4.2. The 10 percent rating under DC 7120 contemplates restrictions on prolonged walking or standing as a result of varicose veins. The evidence in this case is against finding that the Veteran has restrictions on prolonged walking or standing, or any other functional limitations associated with the extremities, as described by or analogous to those described in the rating criteria under DC 7120. Therefore, the Board finds that the Veteran's varicocele does not result in functional impairments that are analogous to those associated with DC 7120 or that are more closely approximated by the criteria for a 10 percent rating under DC 7120. Rather, the functional impairments are more closely analogous to those associated with epididymitis. See, e.g., November 2020 Private Medical Opinion (noting the similarity between presentation, symptoms, and functional impact of epididymitis and varicocele). As the parties agree, the Veteran does not have symptoms or functional limitations that would more closely approximate the criteria for any compensable rating for epididymitis under DC 7525. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include swelling and pain, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran's service-connected left testicle disability is manifest by infections, the need for long-term drug therapy, or by other or similar symptoms that result in the sort of functional impairments (e.g., impairment of standing or walking) typical of the symptoms associated with a compensable rating under either DC 7525 or DC 7120. The Board reiterates, the factual finding is that the Veteran does not have the severity of symptoms and functional impairments that would be analogous to those specifically listed in the rating criteria. Notably, the only symptom identified or discussed in the November 2021 JMR is edema. As the Board interprets the rating schedule, periodic edema alone, without any impact on functioning (such as, but not limited to, prolonged standing or walking), would not meet or closely approximate the rating criteria (even if the edema affected the lower extremities). The Board finds here that the only functional impact of the Veteran's service-connected epididymitis is on his sexual functioning. The Board finds that DC 7120 contemplates some impact on occupational functioning (such as, but not necessarily limited to, difficulties associated with prolonged standing or walking). Where, as here, the only functional impact has already been addressed by a separate special monthly compensation rating, the Veteran does not meet or more nearly approximate the criteria, by analogy, for a 10 percent rating under DC 7120. DC 7120: Analysis 20 Percent Rating Criteria The Veteran's representative has not explained the basis for the claim that the Veteran's testicular condition is manifested by symptoms warranting a 20 percent rating under DC 7120. See December 2020 Correspondence from Representatives (stating the conclusion, but only providing argument as to why rating as epididymitis was improper). The 20 percent criteria includes "persistent edema, incompletely relieved by elevation of extremity." Given the findings of intermittent pain (but no swelling since service) at the 2012 VA examination, of tenderness but no swelling (except by history) at the 2014 VA examination, the 2020 VA Addendum Opinion that the Veteran most likely did not have edema, and the 2020 private opinion that the Veteran had "periodic" edema, the Board concludes that the evidence is firmly against finding that the Veteran had "persistent edema." Therefore, a 20 percent rating under DC 7120 is not warranted. Conclusion: DC 7120 In conclusion, the greater weight of the evidence is against finding that the symptoms of the Veteran's service-connected disability of the left testicle meet or more closely approximate the criteria for any compensable rating. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claim of entitlement to an initial compensable evaluation for service-connected left epididymitis (also claimed as varicocele and swollen left testicle) is denied. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.