Citation Nr: 25003697 Decision Date: 03/18/25 Archive Date: 03/18/25 DOCKET NO. 16-36 600 DATE: March 18, 2025 ORDER From July 31, 2014, entitlement to a rating in excess of 10 percent for the residuals of left epididymectomy is denied. REMANDED Entitlement to service connection for a sleep disability, secondary to residuals of a left epididymectomy, is remanded. Entitlement to service connection for a scar disability, secondary to residuals of a left epididymectomy, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's residual of the left epididymectomy is manifested by pain but not by the complete atrophy of both testes. 2. The Veteran did not have any neoplasm (malignant or benign) of the left testicle; he did not have any renal or voiding dysfunction related to the residuals of the left epididymectomy. CONCLUSION OF LAW From July 31, 2014, the criteria for a disability rating in excess of 10 percent under DC 7523 for the residuals of left epididymectomy, are not met. 38 U.S.C. §§ 501, 1155; 38 C.F.R. §§ 3.321(b), 4.115b; Diagnostic Code 7523. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1971 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of May 2017, October 2022, and February 2023 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). On July 31, 2014, the Veteran submitted a claim seeking an increased rating for the residuals of a left epididymectomy. In March 2020, the Veteran testified before a Veterans Law Judge (VLJ) who has since retired from the Board of Veterans' Appeals (Board). In June 2020, the Board remanded the claim for additional development. In January 2022, the Board mailed the Veteran a letter explaining his right to request a new hearing before a new VLJ. The Veteran did not respond to the January 2022 letter, accordingly, the Board proceeded to decide the appeal on the evidence of record. In June 2022, the Board remanded the claim for consideration of an extraschedular rating. An October 2022 rating decision granted entitlement to a 10 percent rating for the residuals of a left epididymectomy, based on extraschedular consideration, from March 15, 2015. In December 2022, the Board granted a 10 percent rating for the Veteran's residuals of left epididymectomy from July 31, 2014, and denied a rating in excess of 10 percent over the entire appeal period. The Veteran appealed the December 2022 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2023 the Court vacated the December 2022 Board decision and remanded the matter pursuant to a Joint Motion for Partial Remand (JMPR). Under the JMR, the parties agreed that the Board failed to provide adequate reasons and bases to support its decision as it failed to address whether special monthly compensation (SMC) was warranted. The JMPR did not identify any other area where the Board failed to provide adequate reasons and bases to support its decision. Under the JMPR, the parties additionally agreed that, on remand, the Board or the Agency of Original Jurisdiction (AOJ) should provide the Veteran with an authorization form so that VA could seek to obtain private urology records referenced in VA treatment records. The Board issued a March 2024 decision in compliance with the directives of the JMR. This decision granted entitlement to special monthly compensation (SMC) based on loss of use of a creative organ. It remanded the claim for a rating in excess of 10 percent for the residuals of a left epididymectomy and directed the AOJ to assist the Veteran in obtaining relevant private medical treatment records. Thereafter, the Veteran authorized VA to request these private records. In November 2024 and December 2024, VA contacted the private physician and requested records. The physician's office did not respond. In December 2024, VA contacted the Veteran and notified him that the records were unavailable. This letter advised the Veteran of his option to submit private treatment records himself or provide additional locations where outstanding records might be obtained. The Veteran did not respond to the letter. There has been substantial compliance with the Board's March 2024 directives. The issue of entitlement to a rating in excess of 10 percent for left epididymectomy residuals is returned to the Board. Entitlement to a rating in excess of 10 percent for left epididymectomy residuals Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The criteria for rating disabilities of the genitourinary system were updated effective November 14, 2021. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. As there is no indication that the amendments were intended to be applied retroactively, the Board will consider the Veteran's claim under both the former and revised rating criteria, and the criteria that is more favorable to the Veteran will be applied. If the revised criteria are more favorable, they will only be applied from November 14, 2021, when the regulations became effective. The Board observes that the rating criteria for Diagnostic Codes 7523 and 7524 did not change in the update. Diagnostic Code 7523 evaluates atrophy of the testis. A noncompensable rating is assigned for complete atrophy of one testis. A 20 percent rating is assigned for complete atrophy of both testes. 38 C.F.R. § 4.115b, Diagnostic Code 7523. Diagnostic Code 7524 evaluates removal of the testis. A noncompensable rating is assigned for removal of one testis and a 30 percent rating is assigned for complete removal of both testes. 38 C.F.R. § 4.115b, Diagnostic Code 7524. An accompanying Note states that, in cases of the removal of one testis as the result of a service-incurred injury or disease, other than an undescended or congenitally undeveloped testis, with the absence or nonfunctioning of the other testis unrelated to service, an evaluation of 30 percent will be assigned for the service-connected testicular loss. The Note also provides that a testis which is undescended or congenitally undeveloped is not a ratable disability. A footnote to Diagnostic Codes 7523 and 7524 indicates that the disability is to be reviewed for entitlement to special monthly compensation for loss of use of a creative organ under 38 C.F.R. § 3.350(a). Diagnostic Code 7525 provides that chronic epididymitis, orchitis (unilateral or bilateral) shall be rated under the criteria for urinary tract infection, or, for tubular infections, whichever is appropriate. See 38 C.F.R. § 4.115b, Diagnostic Code 7525. Prior to November 14, 2021, Diagnostic Code 7525 address only chronic epididymo-orchitis, and directed that it be treated as a urinary tract infection. 38 C.F.R. § 4.115b. Prior to November 14, 2021, the criteria for rating urinary tract infections, a 10 percent rating was assigned for long-term drug therapy, one to two hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating was assigned for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management. 38 C.F.R. § 4.115a. As of November 14, 2021, Diagnostic Code 7525 evaluates chronic prostatitis, urethritis, epididymitis, and orchitis (unilateral or bilateral). A 10 percent rating is assigned for recurrent symptomatic infection requiring one to two hospitalizations per year, or suppressive drug therapy lasting six months or longer. A 30 percent rating is assigned for recurrent symptomatic infection requiring drainage by stent or nephrostomy tube; or requiring greater than two hospitalizations per year; or requiring continuous intensive management. 38 C.F.R. § 4.115a. Diagnostic Code 7528 provides a rating of 100 percent for malignant neoplasms of the genitourinary system. A note to Diagnostic Code 7528 indicates that, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. Under DC 7529, benign neoplasms of the genitourinary system are rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. Extraschedular Consideration Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b)(1). In evaluating whether an extraschedular rating is indicated, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"); Morgan v. Wilkie, 31 Vet. App. 162 (2019) (holding that the "VA's duty to maximize benefits requires it first to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered," inclusive of the availability of service connection for disability claimed secondary to the service-connected disability); Fisher v. Principi, 4 Vet. App. 57, 59 (1993) ("the rating schedule will apply unless there are "exceptional or unusual" factors which would render application of the schedule impractical"). Alternatives to Extraschedular Ratings In Morgan, the United States Court of Appeals for Veterans Claims (Court) held VA must ensure it exhausts all schedular alternatives before resorting to the last resort of an extra-schedular referral. The Court expanded on this notion in the recent decision in Bailey v. Wilkie, 33 Vet. App. 188 (2021), holding VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability prior to referring a case for extraschedular consideration. Review of Evidence In December 2014, a VA male reproductive system examination was provided. The examiner confirmed a diagnosis of left epididymectomy. The Veteran reported recurrent episodes of pain following a 1972 surgery. He did not take continuous medications. The examiner noted the Veteran's history of chronic epididymitis, epididymo-orchitis or prostatitis and observed no treatment was provided for the condition. The left epididymectomy did not result in renal dysfunction or voiding dysfunction. The examiner stated the Veteran's left epididymis was abnormal as it was tender to palpation. No tumors or neoplasms were present. The examiner found no scars associated with the condition. The left epididymectomy disability did not impact the Veteran's ability to work. In April 2017 a second VA male reproductive system examination was provided. The Veteran reported his testicular pain had worsened since the December 2014 examination. He used tramadol to treat the pain and also used a scrotal support. The examiner confirmed the Veteran's use of continuous medication. He observed the left testicle was one third, or less, than normal size and the left epididymis was tender to palpation. The condition did not result in renal dysfunction or voiding dysfunction. No tumors or neoplasms were present. The examiner indicated no scars were present. It did not impact the Veteran's ability to work. In November 2021, a third VA male reproductive systems examination was provided. The Veteran reported recurrent, almost daily, left testicle pain. The pain was oppressive and pulling. It was exacerbated during sexual intercourse and with squatting, prolonged sitting, lifting, and carrying. At times the pain woke him us. He used prescription and over the counter pain relievers, warm compresses, and scrotal support. The Veteran's medication use was continuous. The Veteran received treatment from a private urologist. He did not have any voiding dysfunction or any renal dysfunction. His left testicle was one third, or less, than normal size. It was very tender to palpation. Although a June 2021 scrotal sonogram showed "heterogenous left testicular echotexture, possibly sequela from a prior inflammatory process," the examiner stated no tumors or neoplasms were present. The examiner noted the residuals of the left epididymectomy limited the Veteran's ability to perform activities such as lifting, carrying, pushing, pulling, squatting, and sitting for long periods. Over the appeal period, VA treatment records include the Veteran's reports of left testicle symptoms. In August 2015, he reported on and off left testicle discomfort. A September 2015 scrotal ultrasound showed a smaller left testicle without focal solid lesions. In June 2016, October 2016, February 2017, the Veteran described left testicular pain and he reported receiving treatment from a private urologist. In October 2016, the Veteran also described interruption of his urinary stream when voiding. He used medication prescribed by a private urologist. In April 2017, the Veteran was seen by a VA urologist who noted the Veteran's report of left testicular pain since 1971. He observed atrophy of the left testicle and stated there were no urinary symptoms associated with this condition. In March 2019, the Veteran continued reporting scrotal pain. In March 2020, the Veteran testified that his left epididymectomy disability resulted in "acute pain," and he took painkillers "all the time." The Veteran reported he had a scar, but his pain was not associated with the scar. The Veteran received VA and non-VA treatment for this condition. He testified that he his physicians told him nodules, which resulted from his surgery, were present in his testicle. The Board acknowledges the evidence of record shows the Veteran received private treatment for his left epididymectomy condition. Records of this treatment are not associated with the claims file. As discussed above, VA has satisfied its duty to assist the Veteran as to these records. The Board will address the claim based on the evidence currently associated with he claims file. Analysis Currently, the Veteran's residuals of a left epididymectomy disability are rated as 10 percent disabling over the entire appeal period. The rating schedule does not provide a specific diagnostic code applicable to this condition and the disability is rated by analogy under DC 7523 (testis, complete atrophy). See 38 C.F.R. § 4.20. Over the appeal period, the Veteran has consistently, competently, and credibly reported pain associated with the site of the left epididymectomy. He similarly reported using pain medications and scrotal support to treat the condition. In December 2022, the Board fully discussed the applicability of a 10 percent rating, but no higher, on an extraschedular basis. The extraschedular rating was warranted due to the pain symptomatology which is not considered under the DC 7523 rating criteria. The JMPR did not identify any deficiency in the reasons and bases provided in support of the December 2022 decision as to this rating. The Board incorporates the analysis provided in the December 2022 decision by reference. The December 2022 Board decision did not address whether a higher rating is available by analogy to a different diagnostic code or through compensation for additional disabilities which may be secondary to the residuals of the left epididymectomy condition. On review of the claims file, the Board finds the rating by analogy under DC 7523 is appropriate for the Veteran's disability. While there is no evidence the left testicle is totally atrophied, it is reduced in size. The Veteran testified that, as he understood information he received from his medical treatment providers, nodules were present at the site of the epididymectomy. As a layperson, he is competent to report his understanding of medical information as it was conveyed to him. However, three VA examiners concluded there were no neoplasms associated with the disability. As medical professionals, these evaluations are entitled to greater weight. The weight of the evidence is against finding any neoplasm disability. A rating under DC 7528 or DC 7529, including a rating by analogy, is not indicated. VA treatment records from October 2016 include the Veteran's report of some voiding issues. However, three VA examiners and the April 2017 VA urology treatment record state the left epididymectomy disability is not associated with any voiding dysfunction. The Veteran is competent to report interruptions in his urine flow, however he is not competent to address the etiology of this symptoms. The evaluations from medical professionals, confirming no voiding difficulties attributed to the service connected condition, are entitled to greater weight. The evidence supports a finding that there are no voiding issues associated with the left epididymectomy. In addition, there is no evidence of any renal dysfunction over the entire appeal period. Thus a rating based on renal or voiding dysfunction, including by analogy under DC 7525, is not indicated. A rating by analogy to a different diagnostic code (other than DC 7523) is not warranted. 38 C.F.R. § 4.20. Under Bailey, VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability prior to referring a case for extraschedular consideration. The evidence discussed above indicates a sleep disability and a scar disability may be associated with the residuals of a left epididymectomy. Entitlement to service connection for a sleep disability and for a scar disability are discussed below. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disability, secondary to residuals of a left epididymectomy, is remanded. 2. Entitlement to service connection for a scar disability, secondary to residuals of a left epididymectomy, is remanded. The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In November 2021, the Veteran reported that pain associated with his left epididymectomy caused him to wake up. The Veteran is competent to report his experience of pain and interrupted sleep. Accordingly, the issue of entitlement to service connection for a sleep disability, secondary to the residuals of a left epididymectomy is raised by the record. As the evidence of record is inadequate to determine the claim, it must be remanded to obtain an examination and etiology opinion. Id; see also Bailey, supra. The Veteran also testified that he has a scar associated with the in-service left epididymectomy surgery. While the VA examiners did not indicate a scar was present, the Veteran is competent to observe a scar and the presence of a scar is consistent with his medical history. The issue of entitlement to service connection for a scar disability, secondary to the residuals of a left epididymectomy is raised by the record. As the evidence of record is inadequate to determine the claim, it must be remanded to obtain an examination and etiology opinion. Id. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for a sleep disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is a sleep disability at least as likely as not proximately due to the residuals of a left epididymectomy, including pain associated with this disability? Is a sleep disability at least as likely as not aggravated, i.e., made worse, by residuals of a left epididymectomy, including pain associated with this disability? The opinion provided must explicitly address both causation and aggravation to be deemed adequate, acknowledging these are separate inquires that require different rationales. In this context, the examiner must be advised aggravation means any increase in disability, i.e., additional functional impairment in earning capacity, resulting from the secondarily claimed condition due to the primary disability. There is no requirement that such increase be permanent in nature. An opinion that simply states there is no anatomical or biological connection between the conditions without addressing whether there is additional functional impairment in earning capacity will be deemed insufficient to facilitate an informed decision on the Veteran's claim. 2. Schedule the Veteran for a VA examination for a scar. The examiner must review the claims file. If the Veteran does not have any scar in the claimed region, this must be expressly stated by the examiner. If a scar is located, the examiner is asked to provide a response to the following: Is a scar disability at least as likely as not proximately due to the residuals of a left epididymectomy? (Continued on the next page) ? Is a scar disability at least as likely as not aggravated, i.e., made worse, by residuals of a left epididymectomy? The opinion provided must explicitly address both causation and aggravation to be deemed adequate, acknowledging these are separate inquires that require different rationales. In this context, the examiner must be advised aggravation means any increase in disability, i.e., additional functional impairment in earning capacity, resulting from the secondarily claimed condition due to the primary disability. There is no requirement that such increase be permanent in nature. An opinion that simply states there is no anatomical or biological connection between the conditions without addressing whether there is additional functional impairment in earning capacity will be deemed insufficient to facilitate an informed decision on the Veteran's claim. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.