93 Decision Citation: BVA 93-07268 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-22 990 ) DATE ) ) ) THE ISSUES 1. Restoration of a 20 percent rating for epididymitis, currently evaluated as noncompensably disabling. 2. Entitlement to an increased rating, in excess of 20 percent, for epididymitis. 3. Restoration of a 10 percent rating for adhesion with tender scar due to appendectomy, currently rated as noncompensably disabling. 4. Entitlement to an increased rating, in excess of 10 percent, for adhesions with tender scar due to appendectomy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William L. Pine, Associate Counsel INTRODUCTION The veteran served on active duty from October 1981 to October 1986. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of October 1989, from the Nashville, Tennessee, Regional Office (VARO). VARO notified the appellant of the decision and of his appellate rights by letter of October 25, 1989. The notice of disagreement was received in May 1990. The statement of the case was issued in May 1990. The substantive appeal was received in June 1990. VARO proposed reducing the veteran's evaluations for his service connected disabilities in a rating decision of November 1990. VARO notified the appellant of the proposed reduction and of his appellate rights by letter of December 14, 1990. Reductions of the disability evaluations for the veteran's service connected disabilities to noncompensable levels were implemented by a rating decision of March 7, 1991. The appellant was notified of the reductions and of his appellate rights by letter of March 21, 1991. VARO issued a supplemental statement of the case (SSOC) in March 1991. The appeal was received at the Board on June 3, 1991. The appellant's representative in this matter, The American Legion, provided a brief on June 25, 1991. The Board remanded the case to VARO on January 28, 1992, for further development. The appellant did not respond to inquiries from VARO regarding additional evidence and clarification of his claims. The appeal was received at the Board again on May 11, 1992, and The American Legion provided another brief on May 20, 1992. The Board again remanded the case to VARO on June 22, 1992, to obtain additional VA medical records and to undertake further efforts to contact the appellant for authorization to obtain private medical records and for him to clarify whether he was claiming service connection for a psychiatric disorder and/or entitlement to a total disability evaluation based on individual unemployability or entitlement to pension benefits. VARO provided the appellant with the appropriate VA forms for each type of claim. The appellant returned the forms, executing only the form for pension benefits, and returning the others blank. VARO issued a rating decision in October 1992 and a SSOC in November 1992. The appeal was received at the Board again on January 21, 1993. The American Legion provided another brief on February 3, 1993. VARO informed the appellant in the SSOC of November 1992 that he lacked the basic qualifying wartime service to be eligible for pension. He has not responded and such issue is not developed for appeal. We construe his return of blank forms as an expression of his intention not to claim service connection for a psychiatric disability or to claim entitlement to total disability rating based on individual unemployability at this time. We do not take jurisdiction of any claim for pension, service connection for psychiatric disability or for a total disability rating at this time. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the 20 percent and 10 percent schedular ratings of epididymitis and adhesion with tender scar due to appendectomy, respectively, were wrongly reduced and that the rating for each disability should be greater than it had been prior to reduction. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), the Board has reviewed and considered all relevant evidence and material of record in the veteran's claims file and for the following reasons and bases, it is the decision of the Board that the schedular rating for both disabilities were properly reduced and that neither disability warrants a compensable rating. FINDINGS OF FACT 1. Reductions of the disability evaluations for epididymitis and for adhesions with tender scar due to appendectomy were proposed by a rating action of November 1990; the appellant was notified of the proposed reduction by letter of December 14, 1990 2. A final rating action to reduce the disability evaluations was taken in March 1991, reducing those evaluations effective on February 1, 1991; the appellant was notified of the final rating action and the reduction in the disability evaluations by a letter dated March 21, 1991. 3. The disability evaluations were reduced effective April 1, 1991, 11 days after the date of the notice of the final rating action; it predated the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action to reduce compensation expired. 4. Epididymitis and adhesions with tender scar due to appendectomy were rated at their prereduction levels for less than five years. 5. Reduction in the disability evaluations for epididymitis and for adhesions with tender scar due to appendectomy was based on examinations disclosing improvement in both disabilities. 6. The veteran's epididymitis is recurrent and mild, manifesting with slight tenderness on the left, without enduration, swelling or masses. 7. The veteran's adhesions with tender scar due to appendectomy are asymptomatic, without tenderness or masses on palpation. CONCLUSIONS OF LAW 1. The reduction of the disability ratings for epididymitis and for adhesions with tender scar due to appendectomy as of April 1, 1991, was premature, in violation of the regulatory timing requirements for reduction of disability evaluations. 38 C.F.R. §§ 3.105(e) (1992). 2. June 1, 1991, was the earliest date as of which the reduced disability evaluations could have been made effective. 38 C.F.R. § 3.105(e) (1992); VA Adjudication Procedure Manual M21-1 § 52.02(1) (July 23, 1986) 3. The regulatory criteria for restoration of a 20 percent rating for epididymitis after May 31, 1991, are not met. 38 C.F.R. § 3.344 (1992). 4. The regulatory criteria for restoration of a 10 percent rating for adhesions with tender scar due to appendectomy after May 31, 1991, are not met. 38 C.F.R. § 3.344 (1992). 5. The schedular criteria for a compensable disability evaluation for epididymitis are not met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.20, 4.27, 4.88b, 4.115a, diagnostic code 7525-7512 (1991). 6. The schedular criteria for a compensable disability evaluation for adhesions with tender scar due to appendectomy are not met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.20, 4.27, 4.114, 4.118, diagnostic code 7301-7804 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant presents a well-grounded claim, and the pertinent facts have been developed. 38 U.S.C.A. § 5107(a) (West 1991). The question before the Board is whether the evidence supports the claim. VARO has undertaken repeated efforts to clarify issues and develop the evidence in this case because of the uncertainty in the record as to whether the appellant had received the notice of the intention to reduce his benefits and the requests for information. The most recent communication from VARO to the appellant requesting information, a letter of June 30, 1992, received a response. That letter was mailed to the same address as was other correspondence to which the appellant had not responded. We conclude, therefore, that communications from VARO to that address were received, and that lack of notice is accordingly not at issue in the instant appeal. RESTORATION The general analysis applicable to both restoration issues is identical; the dates of the rating actions and the effective dates of benefits are the same for epididymitis and for adhesions with tender scar due to appendectomy. They are the appellant's only service-connected disabilities. The underlying question at issue is whether the appellant's disability evalutions were properly reduced. The analysis comprises consideration of the regulations governing the evidentiary requirements for reduction, 38 C.F.R. § 3.344 (1992), and the procedural requirements pertaining thereto. 38 C.F.R. § 3.105(e)(1992). The initial rating was effective October 4, 1986, and had been in effect for less than five years, consequently, the specific evidentiary requirements of section 3.344(a) of title 38 of the Code of Federal Regulations do not apply in this case. 38 C.F.R. § 3.344(c) (1992). "Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating." Id. The procedure for reduction of disability evaluations is set out in 38 C.F.R. § 3.105(e) (1992). The schedular ratings of both disabilities were reduced after the promulgation of a rating action proposing the reductions and notification to the appellant of the proposal, apprising him of the time limits for response. There was a final rating action in March 1991, of which the appellant was notified by letter of March 21, 1991. The controlling regulation requires two rating actions to effect a reduction in disability evaluations, the first to propose the reduction, the second to finalize it; each must be followed by a notice to the appellant. 38 C.F.R. § 3.105(e) (1992). By regulation, "the award will be reduced or discontinued effective the last day of the month in which a 60 day period from the date of notice to the beneficiary of the final rating action expires." Id. In this case, May 31, 1991. According to VA procedure, the actual date of reduced payment of benefits is "the first day of the month following the expiration of the 60-day period of notice to the veteran of the reduction in payments." VA Adjudication Procedure Manual M21-1 § 52.02(1) (July 23, 1986). VARO reduced the disability evaluations effective April 1, 1991, which is erroneous. Under the controlling regulation and manual procedure, the effective date of the reduction may not be earlier than June 1, 1991, if the evidentiary requirements for the reduction were met. 1. Restoration of a 20 Percent Rating for Epididymitis and Schedular Rating in Excess of 20 Percent The appellant is rated by analogy to epidiymo-orchitis [sic], tuberculous, inactive, 38 C.F.R. § 4.115a, diagnostic code 7525 (1992) (although service medical records do not reveal tuberculosis of the testes), which is rated according to impairment of the affected body system. 38 C.F.R. § 4.88b (1992). The diagnostic code for chronic cystitis is for application. 38 C.F.R. § 4.115a, diagnostic code 7512 (1992). Mild cystitis warrants a noncompensable rating. A 10 percent rating requires moderate cystitis; pyuria, with diurnal and nocturnal frequency. A 20 percent rating requires moderately severe cystitis; diurnal and nocturnal frequency with pain, tenesmus. A 40 percent rating requires severe cystitis; urination at intervals of 1 hour or less; contracted bladder. A 60 percent rating is provided where incontinence exists, requiring constant wearing of an appliance. The reduction in the schedular rating for epididymitis was correct in substance if "reexamination disclosed improvement." 38 C.F.R. § 3.344(c) (1992). Such determination is based on consideration of the current findings in the context of the disability's history, considered from the point of view of the appellant working or seeking work, with a full description of the effects of disability upon the appellant's ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10 (1992). Review of the medical history reveals that the appellant contracted chronic epididymitis in service, referred to twice in the record as epidiymo-orchitis [sic]. He was treated repeatedly, with repeated findings entered of testicular and epididymal tenderness, with occasional swelling of the epididymis; he was put on light duty due to aggravation of the symptoms with strenuous exercise and heavy lifting. On VA examination in March 1987, the appellant reported five episodes of symptoms between November 1986 and 1987. He did not complain of any particular impairments in function or activities. On examinations, the seminal vesicles, testes and cord were all tender to palpation. There was no actual swelling and no pain, other than the tenderness to palpation. The diagnosis was recurrent epididymitis, currently asymptomatic. On VA examination in May 1988, the appellant reported six to 10 episodes of epididymitis since separation from service. He made no complaints of functional limitations due to epididymitis. On examination the testes were equal in size and weight. The left testicle was tender to palpation and manipulation, with a slightly "wormy" feeling epididymis. The impression was probable recurrence of chronic left epididymitis. In August 1989, the appellant was seen at a VA outpatient clinic for complaints of rectal and penile bleeding following heavy lifting and pain in the area of an appendectomy scar. Examination produced an impression of microscopic hematuria, possible etiology of prostatitis or urethritis. There were no findings relative to epididymitis. On VA examination in September 1990, the appellant complained that he was unable to obtain permanent employment because of mental and physical problems, including swollen testicles. He complained of recurrence of testicular swelling approximately every two weeks, which resolved in about three days. He reported no pain on examination. Examination found no masses, a mildly tender left epididymis, with slight tenderness in the [illegible] region, with the epididymis in normal position bilaterally; prostate was benign. The impression was of an essentially negative examination. The symptoms of acute epididymitis are fever and pain in the scrotum, with swelling, induration and marked tenderness of a portion or all of the affected epididymis and at times adjacent testis. The Merck Manual of Diagnosis and Therapy 1620 (15th ed. 1987). By analogy to cystitis, the Board is of the opinion that the demonstrated absence of swelling and induration is sufficient for a finding of improvement and and to find a noncompensable rating warranted by analogy to mild cystitis under the applicable diagnostic code. Notably, no examination after 1988 noted symptoms more severe than tenderness, which comports with a noncompensable rating. The appellant complained of functional limitation related to his genital disorder, incapacity for heavy lifting, on only one occasion, which we find insufficient evidence of a degree of functional limitation to warrant restoration of a 20 percent rating. As regards the claim for a schedular rating in excess of 20 percent, the evidence is identical to that considered for the reduction in rating and discussed above, except for VA outpatient record from November 1989 to December 1989, VA hospital summaries from December 1989 and August 1992 and clinical records from a private mental health center of April to July 1992. The VA hospital records pertain primarily to diagnoses of malingering, cocaine dependence and schizophrenia, essentially immaterial to the instant appeal, as are the private psychiatric records. On VA psychiatric hospitalization in November and December 1989, physical examination found the testes without masses, swelling or tenderness. VA outpatient examination in December 1989 found prostatitis; complaints of testicular pain were noted, as was the appellant's history of testicular tuberculosis in service. He reported that any work or heavy lifting caused pain in the testes. Examination found the left testicle tender, without swelling or masses, provisionally diagnosed as epididymitis/ orchitis by history; bilateral generalized tenderness without epididymitis. Outpatient examination in January 1990 found prostatitis and genital herpes and a tender left testicle without induration or masses. The impression was prostatitis and mild epididymitis. The veteran was followed on an outpatient basis for prostatitis through December 1990, complaining of urination eight to nine times per day on one occasion. The additional evidence continues to show mild disability due to epididymitis. The frequent urination was associated with prostatitis, not epididymitis. The single complaint of inability to work or do heavy lifting due to testicular pain is insufficient to counterbalance the repeated objective findings of mild chronic epididymitis. Absent more severe symptoms than demonstrated, we do not find the appellant's attribution of his inability to lift or work generally to be consistent with the demonstrated degree of pathology. The preponderance of the evidence is against granting a disability rating at any compensable level. 2. Restoration of 10 Percent Rating for Adhesion with Tender Scar Due To Appendectomy and Schedular Rating in Excess of 10 Percent The reduction in the disability rating for post operative adhesions was warranted if reexamination showed improvement. 38 C.F.R. § 3.344(c) (1992). We review the evidence in light of the entire history and from the point of view of the appellant working or looking for work. 38 C.F.R. §§ 4.1, 4.2, 4.10 (1992). The appellant has been rated by combination of the diagnostic codes for adhesion of the peritoneum, 38 C.F.R. § 4.114, diagnostic code 7301 (1992), and for superficial scar. 38 C.F.R. § 4.118, diagnostic code 7804 (1992). The former code provides for a noncompensable rating for mild adhesions of the peritoneum. A 10 percent rating requires moderate adhesions with pulling pain on attempting work or pulling pain which is aggravated by movements of the body, or with occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating requires moderately severe adhesions with partial obstruction manifested by delayed motility of a barium meal and less frequent and less prolonged episodes of pain than are present with severe adhesions. A 50 percent evaluation requires severe adhesions with definite partial obstruction shown by X-ray study, frequent and prolonged episodes of severe colic, distension, nausea or vomiting following severe peritonitis, a ruptured appendix, a perforated ulcer, or an operation with drainage. The latter code provides for a 10 percent rating for superficial scars which are tender and painful on objective demonstration. The appellant had an appendectomy in service in March 1985. Postoperatively, he was seen for complaints of abdominal pain, diagnosed as adhesions. On VA examination in March 1987 he was found to have pain in the area of the appendectomy, which he reported as intermittent, not severe, but bothersome. He had a healed, three inch abdominal scar, which was slightly tender to palpation. The diagnosis was pain and tenderness of appendectomy scar. The examiner opined that adhesions can cause pain for two to three years, and was the probable cause of the appellant's symptoms. On VA examination in May 1988, the appellant complained of discomfort of the scar with stretching of the skin, lifting, irritation from his belt or other contact with that area. On examination, the examiner found a well healed 7.5 centimeter abdominal scar, with some small "shotty" feeling at intervals along the length of the scar, but not adjacent to it. Palpation of the scar produced guarding and withdrawal, and stretching of the skin produced some response. The diagnostic impression was probable adhesions and tender appendectomy scar. In August 1989 the appellant sought VA outpatient treatment for complaints of blood in the urine and in the stool. He reported that it began with pain in the area of abdominal surgery coincident with some heavy lifting approximately two days before seeking treatment. He expressed concern that his adhesions caused the symptoms. He denied vomiting, diarrhea or constipation. There was mild diffuse periumbilical and right lower quadrant tenderness, without significant guarding. The diagnostic impression was microscopic hematuria. Status post appendectomy with history of adhesions was noted. On VA examination in June 1990, the appellant complained of stomach pain, reporting he had been hit in the stomach with a piece of wood. On examination there was found a three inch surgical scar at McBurney's point, without masses felt. The scar was well healed, without tenderness, and bowel sounds were normal. The diagnostic impression was status post appendectomy. On examination for epididymitis in September 1990, he complained that his stomach still hurt in the area of the appendectomy, and that he had weight loss and loss of appetite without obvious cause. The record shows that he weighed 163.5 pounds on VA examination in May 1988 and 171 pounds on VA outpatient examination on August 16, 1990. The evidence of record at the time of the rating action which proposed reducing the disability evaluation for adhesions with tender scar clearly shows improvement. Comparison of the March 1987, May 1988 and June 1990 VA examinations shows a steady reduction in severity of symptoms of adhesions and tenderness of the scar. The appellant ceased guarding on palpation and the lumps felt in May 1988 were not felt in June 1990. The appellant has attributed the limitation in his ability to lift and hematuria to the post operative adhesions, but the outpatient record shows that a nonservice-connected genitourinary disorder is probably the cause of hematuria, and the objective findings on examination are inconsistent with the subjective report of inability to lift. The preponderance of the evidence indicates that the appellant was properly reduced to a noncompensable rating for adhesion with tender scar, but that the effective date of the reduction was premature and must be amended. As regards the claim for an increased rating, in excess of 10 percent for the adhesions with tender scar due to appendectomy, the only pertinent evidence added to the record since the reduction in rating is the VA outpatient treatment records from November 1989 to December 1990. These indicate that the appellant complained of pain in the area of his appendectomy scar in August 1989, which he attributed to heavy lifting, and which he felt was the cause of blood in his urine. The outpatient record notes that a nonservice-connected genitourinary disorder is probably the cause of hematuria. The veteran complained of abdominal pain in December 1989, reporting that it followed eating a probably tainted ham sandwich. The abdomen was benign on examination and the impression was gastritis. The evidence continues to indicate mild disability due to adhesions, with a currently nontender scar. The objective findings are inconsistent with the subjective reports of inability to lift. Without any objective verification of the subjective complaint, we do not find functional disability attributable to the service connected adhesion such as to warrant a compensable evaluation. The preponderance of the evidence is against granting a disability rating at any compensable level. ORDER Restoration of a 20 percent rating for epididymitis and a 10 percent rating for adhesions with tender scar due to appendectomy, for the period from April 1, 1990, to May 31, 1990, is granted; increased (compensable) ratings for epididymitis and for adhesions with tender scar due to appendectomy are denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 BETTINA S. CALLAWAY MATTHEW J. GORMELY, III * (MEMBER TEMPORARILY ABSENT) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988 (see sec. 402 of the Veterans' Judicial Review Act (Pub. L. 100-687)). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.