Citation Nr: 22052307 Decision Date: 09/14/22 Archive Date: 09/14/22 DOCKET NO. 17-31 941 DATE: September 14, 2022 ORDER Entitlement to an initial compensable rating for a right testicle wound is denied. FINDING OF FACT During the period on appeal, the Veteran's right testicle wound has not been manifested by any scars, UTIs, complete atrophy of both testes, or any renal or voiding dysfunction. CONCLUSION OF LAW The criteria for an initial compensable rating for a right testicle wound have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7523. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1998 to September 1999, February 2001 to June 2001, August 2004 to May 2006, and August 2006 to August 2009. The Board notes that the Veteran was initially discharged from his period of service from December 1998 to September 1999 under other than honorable conditions, but in January 2013 this was upgraded to an honorable discharge. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is of record. In January 2020 and October 2021, the Board remanded the issue on appeal for additional development. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The October 2021 Board remand instructed the RO to schedule a VA examination to determine the current severity of his right testicle wound. In compliance with the remand, the RO made multiple attempts to contact the Veteran and schedule an exam, first by letter in February 2022 and then by phone in March 2022. The Veteran did not respond. To date, neither the Veteran nor his representative have provided good cause for why he has not responded, nor have there been any requests that the examinations be rescheduled, despite being notified of the attempts to contact him in the most recent May 2022 supplemental statement of the case. 38 C.F.R. § 3.655(a),(b). Neither the Veteran nor her representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Failure to Report When entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, an original claim for compensation is to be decided based on the evidence of record. 38 C.F.R. § 3.655(b). When a claimant fails to report for an examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be denied. Id. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. 38 C.F.R. § 3.655(a). In other words, in cases where a veteran fails to appear without good cause for a necessary VA examination the regulation creates two categories of claims. Turk v. Peake, 21 Vet. App. 565, 569 (2008). The first is original claims, which must be decided based on the evidence of record despite the failure to appear for the scheduled examination. Id. The second is comprised of other original claims, reopened claims for previously denied benefits and claims for increase, which are to be summarily denied based on the failure to appear. Id. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Entitlement to an initial compensable rating for a right testicle wound The Veteran seeks a compensable rating for his right testicle wound. The Veteran's right testicle wound is rated noncompensable under DC 7523, effective May 16, 2006 to August 14, 2006 and again from August 14, 2009. DC 7523 governs atrophy of the testis, with a noncompensable rating indicating the complete atrophy of one testis, and a 20 percent rating for complete atrophy of both testes. December 2009 VA treatment records indicate that the Veteran complained that his scrotum was sensitive every couple of days. He denied having issues voiding. The Veteran's medical history indicated that shrapnel went through his right scrotum, which had been removed. A physical examination indicated that both testicles were okay, and the epididymis may have been somewhat thickened. The Veteran related that he had a vasectomy in 2004. The Veteran was diagnosed with orchialgia. The records indicated that there was no history of neoplasms, and further indicated that the Veteran had erectile dysfunction due to pain with prolonged erection but stated that vaginal penetration was possible. An ultrasound of the Veteran's testicles indicated that the Veteran's right testicle was somewhat heterogenous in echotexture, likely due to prior history of trauma. The Veteran's left testicle had two epididymal cysts, a small calcification, and a homogenous echotexture. A February 2010 VA examination indicated that the Veteran experiences chronic testicular pain with walking and sexual activity and often has erectile dysfunction due to loss of erection with intercourse due to pain. A March 2013 VA examination indicated that the Veteran's diagnosis was residuals of a wound of his right testicle. The Veteran stated that he experiences intermittent right testicle pain with running, brisk walking, prolonged sitting, and sexual activity. He indicated that his pain has remained unchanged over the last 3 years. The Veteran reported difficulty maintaining an erection due to his testicular pain. The March 2013 VA examiner indicated that the Veteran did not have an orchiectomy, voiding dysfunction, or recurrent symptomatic UTIs or kidney infections. The examiner also indicated that while the Veteran reported difficulty maintaining an erection, the Veteran did not meet the criteria for a diagnosis of erectile dysfunction and has not been diagnosed with erectile dysfunction or treatment with erectile dysfunction. The examiner also indicated that the Veteran did not have a history of chronic epididymitis, epididymo-orchitis, or prostatitis. A physical examination of the penis and testes revealed normal results. The Veteran reported subjective tenderness to palpation of the bilateral testicles. The March 2013 VA examiner indicated that the Veteran did not have any scars related to his residuals of a right testicle wound. The March 2013 VA examiner indicated that the Veteran's right testicle condition impacts his ability to work, as the Veteran's testicle pain limits his running abilities. February 2016 VA treatment records indicated that an ultrasound of the Veteran's scrotum revealed normal results. July 2016 VA treatment records indicated that the Veteran took medication prior to sexual activity for his erectile dysfunction. The Veteran testified at his December 2019 Board hearing that one of more of his testicles had atrophied. He related that his pain from many of his service-connected disabilities has worsened to the point where he could not get out of bed in the morning and had to start taking narcotics. A December 2020 VA examination indicated that the Veteran's diagnosis was status-post wound of right testicle (orchialgia). The Veteran indicated that his symptoms were tenderness and that it has stayed the same. The December 2020 VA examiner indicated that the Veteran did not have an orchiectomy, voiding dysfunction, or renal dysfunction. The examiner as indicated that the Veteran did not have a history of chronic epididymitis, epididymo-orchitis, or prostatitis. The December 2020 VA examiner indicated that the Veteran did not have erectile dysfunction. A physical examination of the penis revealed normal results, and a physical examination of the testes revealed tenderness to palpation in the right testicle. The December 2020 VA examiner found that the Veteran did not have any scars related to his right testicle condition, and the examiner stated that the Veteran's right testicle condition did not impact his ability to work. In October 2021 the Board remanded the claim for the Veteran to undergo another VA examination, however, as mentioned previously, he was unable to be contacted and has not provided good cause or rescheduled the examination. Therefore, the Veteran's claim for an initial higher rating must be based on the evidence of record, as it is an "original" claim. See 38 C.F.R. § 3.655. Based on the forgoing, the persuasive the evidence is against a finding that a compensable rating is warranted for the Veteran's right testicle wound. The medical evidence of record reflects that the Veteran's right testicle wound does not result in any compensable genitourinary dysfunctions or diagnoses. the VA examinations and VA medical records do not indicate that the Veteran experienced any voiding issues, renal issues, recurrent UTIs, or had any residual scars on his right testicle. Furthermore, they did not indicate that he had neoplasms of the genitourinary system, prostatitis, or epididymitis, or that both of his testis had completely atrophied. There is no evidence that any of the Veteran's VA examiners were either not competent or credible, and as the reports are based on objective examinations of the Veteran's symptoms, the Board finds the reports are entitled to significant probative weight as to the severity of the Veteran's right testicle wound during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295. Finally, the Board acknowledges the Veteran's sincere belief that his right testicle wound symptoms are worse than reflected by his currently assigned rating. The Veteran is competent to report symptoms of disability, such as pain experienced in his right testicle. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to report that his right testicle wound is of sufficient severity to warrant a higher rating under the rating schedule for his right testicle wound, as such an opinion requires specialized medical testing and expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Regarding the Veteran's assertion that his erectile dysfunction is secondary to his service-connected right testicle wound, the Board's October 2021 remand specifically asked for a VA examination to reconcile the conflicting evidence of record relating to this issue. However, as the Veteran did not show up for a VA examination or provide good cause for his absence after the RO fulfilled its legal duty to assist, the Board does not have the information needed to address this contention. (Continued on the next page) No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.