Citation Nr: 22050005 Decision Date: 09/01/22 Archive Date: 09/01/22 DOCKET NO. 15-45 455 DATE: September 1, 2022 ORDER A 30 percent disability rating for hypogonadism of the right testicle associated with loss of left testicle is granted. REMANDED Entitlement to service connection for muscle loss/atrophy in the arms and legs is remanded. FINDING OF FACT Hypogonadism of the Veteran's right testicle has been manifested by pain, atrophy, reduced testosterone levels, decreased libido, and aggravation of erectile dysfunction (ED). CONCLUSION OF LAW The criteria for a 30 percent disability rating for hypogonadism of the right testicle associated with loss of left testicle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.115b, Diagnostic Code 7599-7524. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to July 1971. In an August 2015 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) effectuated a grant of service connection for hypogonadism of the right testicle, effective February 20, 2004, and assigned a disability rating of 0 percent. In October 2015, August 2018, May 2020, March 2021, and November 2021, the Board remanded the appeal for additional action, to include obtaining an examination, addendum opinions, and medical records. The Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was represented by the Disabled American Veterans. However, in a July 2022 correspondence, he revoked his designation of that organization as his representative. As he has not selected another representative, he is unrepresented in the present appeal. Rating for hypogonadism of the right testicle VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating 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. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. The RO has evaluated the Veteran's hypogonadism of the right testicle as noncompensable under DCs 7599-7523. Under DC 7523, complete atrophy of testis is rated at 20 percent if it affects both testes and 0 percent if it affects one testis. Under DC 7524, a 30 percent rating is warranted for removal of both testes and 0 percent for removal of one testis. DC 7524 contains a Note which states that, in cases of removal of one testis as a result of a service-incurred injury or disease, with the absence or nonfunctioning of the other testis unrelated to service, a 30 percent rating will be assigned for the service-connected testicular loss. In a November 2020 brief, the Veteran's representative argued that a rating of at least 20 percent should be assigned, as DC 7523 provides for that rating for atrophy of both testicles, and the Veteran has atrophy in both testicles. Due to the complicated medical history of this case, at the outset the Board will summarize the relevant evidence of record. The Veteran was attacked and hit in the genitals with a mop handle during active service. In a January 2005 rating decision, the RO granted service connection for loss of left testicle due to traumatic absence, effective February 20, 2004. The RO assigned a disability rating of 0 percent under DC 7524. VA also granted from February 20, 2004, special monthly compensation (SMC) based on anatomical loss of a creative organ. The law does not provide for a higher rate of SMC for loss of use of a creative organ. 38 U.S.C. § 1114 (k). On VA examination in December 2004, the Veteran reported that, with the traumatic injury of his genitals during service, his scrotum swelled severely. He related that he had inpatient treatment followed by convalescence. He stated that the swelling gradually decreased and resolved. He said that aching in the area continued through the present. The examiner found that no left testicle was present. The right testicle was normal in size and consistency, without tenderness. On testing, the Veteran's testosterone level was below normal. The examiner's diagnoses were traumatic absence of the left testicle and mild hypogonadism (gonad dysfunction with reduced or absent production of sex hormones). The examiner indicated that the Veteran's hypogonadism was secondary to the absence of the left testicle. In August 2005 the Veteran had a private urology consultation for issues including ED. He reported traumatic injury to his scrotum in 1970, followed by atrophy of his left testicle. In the 2005 visit, he related progressive decline of erection function over the last few years. On testing, the Veteran's testosterone level was within normal limits. In a May 2006 statement, the Veteran wrote that loss of his left testicle caused hormone problems such that he could not perform sexually. On VA examination in July 2006, the Veteran reported episodes of pain in the testicles since the injury in service. He related present ED that required medication. He stated that for more than twenty years he had experienced difficulty reaching ejaculation. The examiner found no palpable left testicle and described the size of that testicle as completely atrophic. The right testicle was of normal size. On testing the testosterone level was low. The examiner found that the Veteran's ED was most likely due to endocrine disease. The examiner stated that test results suggested primary testicular failure of the right testicle. In an October 2006 addendum, the examiner noted that, for a time after the left testicle injury and atrophy, the Veteran was able to function sexually, including having three children. The examiner concluded that the more recent change in sexual function was caused by a change in his right testicle. The examiner stated that test results showed primary failure of the right testicle to produce adequate testosterone. On VA examination in October 2007, the Veteran related discomfort in his scrotum with car travel and with some types of pants. He reported that medication for ED allowed penetration but often did not last long enough to reach ejaculation. The examiner noted the absence of a left testicle and found that the right testicle was of normal size. In private treatment in November 2007, the Veteran reported ongoing partial ED, difficulty maintaining erection, and delayed orgasm. Testing showed a low testosterone level. In a February 2008 statement, the Veteran wrote that his right testicle could no longer function in place of his absent left testicle. He noted that laboratory testing showed low testosterone levels. He reported ED. In a July 2008 statement, the Veteran asserted that he had right testicular failure due to traumatic loss of his left testicle. In private treatment in August 2008, the Veteran reported ongoing sexual dysfunction. He reported that his erections sometimes were weak and that that he sometimes had pain with erection. He reported trouble reaching orgasm. The physician administered a testosterone injection. On follow-up in September 2008, the Veteran reported no change. Testosterone replacement therapy was continued. In December 2008 the Veteran's testosterone level was higher than in November 2007 but still below the normal range. In May 2009 the Veteran had a hearing at the RO before a Decision Review Officer (DRO). He reported ongoing problems since the injury to his genitals during service. He stated that presently he had genital pain with sexual activity and with rubbing from clothing. He indicated that the ongoing effects of the injury included impaired sexual function. He reported that his physician prescribed testosterone injections, but his testosterone level remained low. In private treatment in May 2010, the Veteran reported ongoing ED. The physician noted that he had ongoing hypogonadism and sexual dysfunction including ED and delayed orgasm. The Veteran stated that he did not want further testosterone therapy. On VA examination in June 2010, the Veteran reported ongoing ED. He noted that he chose to discontinue testosterone therapy. On testing his testosterone level was slightly low. The examiner noted that penetration was not possible. The examiner stated that endocrine disease was the most likely etiology of the Veteran's ED and that hypogonadism was the most likely etiology of his absence of ejaculation. In a September 2015 notice of disagreement, the Veteran stated that he had low testosterone, ED, and no sex drive. He asserted that some compensation is warranted for his left and right testicle issues. In a December 2015 substantive appeal, the Veteran stated that his right testicle hypogonadism caused problems including right testicle pain, low testosterone, and ED. He also reported urinary incontinence, impaired concentration, and muscle loss. In March 2016 the Veteran had a VA urology consultation. He reported having urinary frequency and urge incontinence for several years. The urologist noted that the Veteran had been diagnosed with diabetes. The urologist diagnosed overactive bladder and prescribed medication. In an August 2016 urology consultation, the Veteran reported ongoing urinary problems. The urologist adjusted medications. The Veteran also reported a history of testicle loss, low testosterone, and hypogonadism. In primary care in November 2016, the Veteran reported a history of hypogonadism, diagnosed in 2004, with no current treatment. Testing in November 2016 showed a below normal testosterone level. A urology visit in November 2016 was for cytoscopy as follow-up treatment for urinary frequency and incontinence. The urologist's impression was benign prostatic hypertrophy (BPH) with obstruction. The Veteran's VA treatment records from 2017 to 2022 reflect ongoing urinary issues, including overactive bladder. In August 2018 the Board remanded the appeal for a VA examination to clarify the effects and severity of the Veteran's hypogonadism. On VA examination in June 2019, it was noted that symptoms of the Veteran's right testicle hypogonadism included ED and urinary frequency. The examiner found that the Veteran had complete atrophy of the left testicle and atrophy of the right testicle to one-third to one-half of normal size. The examiner found that the Veteran had testis atrophy, testicular hypofunction, and ED. The examiner found that the Veteran had a voiding dysfunction with increased urinary frequency and signs of obstructed voiding. The examiner found that the Veteran did not have chronic epididymitis, epididymo-orchitis, or prostatitis. The examiner expressed the opinion that file review and examination were not sufficient to allow answers to the questions posed in the examination request. In a September 2019 statement, the Veteran asserted that the June 2019 VA examination was very brief and incomplete. He related considerable ongoing disability that he attributed to his right testicle hypogonadism. He reported that his right testicle had ongoing chronic pain. In May 2020 the Board remanded the hypogonadism rating issue for another examination to clarify the effects and severity of the Veteran's hypogonadism. In June 2020, a private physician contracted by VA reviewed the Veteran's claims file and completed a VA medical opinion disability benefits questionnaire (DBQ). The physician stated that the Veteran's testosterone levels, including as measured in 2016, were below normal, but were consistent with the Veteran's age. The physician expressed the opinion that the Veteran's urinary dysfunction was not related to his hypogonadism or his left testicular injury. He stated that those conditions were different physiologically and anatomically. The physician opined that the Veteran's ED was less likely than not related to his left testicle atrophy but was more likely related to his right testicular atrophy, age, and other comorbidities. The physician found that the Veteran's testosterone levels were not low enough to interfere with cognition. The physician noted that the Veteran had factors, including the natural aging process, that could affect cognitive abilities. The physician stated that muscle loss that the Veteran reported was subjective and had not been medically documented. The physician indicated that the testosterone levels shown on testing were not low enough to cause muscle wasting. In September 2020, private family physician K.G., D.O., wrote that he had been treating the Veteran for many years. Dr. G. noted that the Veteran had severe atrophy of his left testicle and some atrophy of his right testicle. Dr. G. stated that the Veteran had constant testicular pain and severe ED. Dr. G. reported that the Veteran had extremely low testosterone levels with resultant skeletal muscle atrophy. Dr. G. expressed the opinion that all of those conditions were the result of the testicle injury the Veteran incurred in service. In a November 2020 statement, the Veteran reported that the physician who provided the June 2020 opinion did not examine him even though he was present. The Veteran asserted that the opining physician did not consider current medical records. In March 2021 the Board remanded the hypogonadism rating issue for another VA examination to determine the current nature and severity of the Veteran's right testicle hypogonadism. In VA examination in May 2021, the examiner found that the Veteran's right testicle hypogonadism had worsened since onset. The examiner noted that the Veteran had right testicle pain. The examiner found that the size of the right testicle was one-third or less of normal and that the left testicle was atrophied. The examiner opined that the Veteran's ED was caused by his diabetes and his hypogonadism. The examiner explained that hypogonadism can cause ED and that ED is common in men with diabetes. The examiner noted that the Veteran's diabetes was diagnosed before his hypogonadism was diagnosed. The examiner opined that the Veteran's ED was caused by his diabetes and worsened by his hypogonadism. The examiner expressed the opinion that any urinary symptoms were unrelated to his right testicle hypogonadism. The Veteran's service-connected disability residual to left testicle injury in service is evaluated as loss of that testicle, due to traumatic absence, and is evaluated under DC 7524, as removal. Under the DC 7524 Note, with service-connected removal of one testicle, and absence or nonfunctioning of the other testicle, a 30 percent rating will be assigned for the service-connected testicular loss, even if the absence or nonfunctioning of the second testicle is unrelated to service. The Board finds it reasonable to also apply the Note when, as here, the condition of the second testicle is related to service. A 30 percent rating for disability associated with the conditions of both testicles would be appropriate if the right testicle is absent or nonfunctioning. The Veteran's right testicle is not absent. However, there is medical evidence of reduction in size and function of that testicle. Clinicians have found that it has atrophied, most recently to one-third or less of normal size. Size reduction to that extent is considered loss of use for SMC purposes. 38 U.S.C. § 1114 (k). The hypogonadism of the Veteran's right testicle is manifested by reduction in testosterone production. Testing has repeatedly shown below normal testosterone levels. The Veteran's treating physician Dr. G. characterized the levels as extremely low. In July 2006 a VA examiner described the Veteran's right testicle as in primary testicular failure with respect to testosterone production. In addition, the Veteran has consistently reported right testicular pain, which the Board finds credible. Further, several clinicians have indicated that the Veteran's right testicle hypogonadism at least contributes to causing or aggravates his ED. In a November 2012 decision, the Board found that establishment of separate service connection and a separate rating for the Veteran's ED was not warranted because that would constitute improperly evaluating the same disorder under different diagnoses, or "pyramiding." See 38 C.F.R. § 4.14. The Board presently finds that the effect of the Veteran's testicle disorders on his ED can be recognized, without pyramiding, if a 30 percent rating is assigned for a single disability encompassing the loss of the left testicle, hypogonadism of the right testicle, and associated ED. The Board finds that atrophy, reduced testosterone, decreased libido, and erectile dysfunction associated with the right testicle hypogonadism more nearly approximates a nonfunctioning than functioning testicle. The Veteran has attributed other conditions to his right testicle hypogonadism, including urinary dysfunction, muscle loss, and impairment of concentration. In private and VA treatment and examinations, clinicians have not found that the Veteran's urinary frequency and incontinence are part of the same condition as his right testicle condition. The evidence of record persuasively weighs against finding that the Veteran's urinary problems are part of his right testicle hypogonadism or are to be considered in evaluating the hypogonadism. The Veteran contends that low levels of testosterone have caused impairment of concentration. No clinician has supported a connection between the Veteran's hypogonadism and reduced testosterone levels and any reduction in concentration or other cognitive function. For the reasons discussed above, the Board finds that the symptomatology of the Veteran's right testicular disability, when considered with the left testicular disability, is more closely analogous to bilateral removal of the testes, which warrants a 30 percent rating under DC 7524 for removal of both testicles. The Board acknowledges that removal of either testicle is not shown here, but instead finds this to be the most closely analogous criteria by which to rate the Veteran's service connected right testicular disability. For this reason, the relevant DC will be changed from 7523 to 7524 and increased from 0 percent to 30 percent. REASONS FOR REMAND 1. Service connection for muscle loss in the arms and legs The Veteran contends that the effects of his right testicle hypogonadism include muscle loss or atrophy in his arms and legs due to lowered testosterone levels. In September 2020, the Veteran's private primary care physician, Dr. G., indicated that the Veteran's service-connected testicle disorders resulted in extremely low testosterone levels, which in turn resulted in skeletal muscle atrophy. DCs 7523 and 7524, which address testis-related disorders, do not address muscle loss. In Morgan v. Willkie, 31 Vet. App. 162 (2019), the Court indicated that the Board should consider whether application of the regular rating schedule can adequately compensate a veteran's disability before resorting to an extraschedular analysis of that disability. The Court indicated that the Board should consider whether symptoms not contemplated under one DC could be compensated by other aspects of the rating schedule, including secondary service connection and evaluation under a different DC. The Veteran contends that his right testicle hypogonadism should be assigned a higher rating due to claimed resulting arm and leg muscle loss claim. The claimed muscle loss thus is part of his hypogonadism rating claim. As suggested in Morgan, the Board is addressing the muscle issue as a claim for service connection for muscle loss secondary to right testicle hypogonadism. The evidence is mixed as to whether the Veteran has muscle loss. A June 2020 reviewing physician found that a subjective report of muscle loss had not been medically documented. In September 2020 Dr. G. supported the existence of muscle loss. The evidence also is mixed as to whether any muscle loss is related to reduction in testosterone levels or in turn to the right testicle hypogonadism and/or the loss of the left testicle. The June 2020 reviewer indicated that the testosterone levels shown on testing were not low enough to cause muscle wasting. Dr. G. concluded that the Veteran's lowered testosterone levels had caused muscle loss. The Board is remanding the muscle loss claim for additional information as to the claimed muscle loss and additional opinion as to any relationship between service-connected testicle issues and muscle loss. Dr. G., as the Veteran's longtime physician, should be asked to describe and, if possible, quantify, the Veteran's arm and leg muscle loss. An appropriate clinician should review the expanded record and provide opinion as to a relationship between the Veteran's testosterone levels over time and any muscle loss The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Kermit Gibson, D.O., of Elkhorn City, Kentucky. Make two requests for the authorized records from Dr. Gibson unless it is clear after the first request that a second request would be futile. 2. Then, provide the Veteran's expanded claims file to an appropriate physician for review and opinion as to the etiology of any currently diagnosed arm and leg muscle loss or atrophy. Ask the reviewer to provide opinion as to whether it is as likely as not (an approximate balance of negative and positive evidence) that any muscle loss or atrophy in the Veteran's arms and legs is caused by the lowering of the Veteran's testosterone levels associated with his service connected right testicle hypogonadism and/or loss of his service connected left testicle. Ask the reviewer to provide opinion as to whether it is as likely as not (an approximate balance of negative and positive evidence) that any muscle loss or atrophy in the Veteran's arms and legs is aggravated (worsened) by the reduced testosterone levels associated with his service connected right testicle hypogonadism and/or service connected loss of his left testicle. The examiner should specifically address Dr. Gibson's finding that the service connected right testicle hypogonadism is related to the Veteran's muscle loss. [Receipt Date September 8, 2020] Separate causation and aggravation opinions are required. (Continued on the next page) A complete rationale is required for all opinions. 3. Then review the expanded claims file and adjudicate the issue of service connection for arm and leg muscle loss or atrophy. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.