Citation Nr: 0303267 Decision Date: 02/25/03 Archive Date: 03/05/03 DOCKET NO. 96-14 347 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to a rating higher than 10 percent for right epididymitis, status post right vasectomy and right epididymectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran had verified active duty from January 1977 to August 1994, and he reportedly also had several months of additional active service in 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 1995 RO rating decision which granted service connection and a noncompensable rating for chronic right epididymitis. In March 1996, the RO increased the initial rating assigned to this condition from 0 to 10 percent. In April 1997, a hearing was conducted before an RO hearing officer. The veteran failed to report for a Board videoconference hearing in October 1999, and a Travel Board hearing in March 2000. In April 2000, the Board remanded this case for additional evidentiary development. FINDINGS OF FACT The veteran's right epididymitis, status post right vasectomy and right epididymectomy, is manifested by complaints of pain in the right testicle area, and it has required no more than intermittent intensive medical management. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right epididymitis, status post right vasectomy and right epididymectomy, have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7525 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran had verified active duty in the Air Force from January 1977 through August 1994, at which point he retired. He reportedly also had several months of additional active service in 1976. The veteran's service medical records reveal several incidents of treatment for epididymitis during service. A treatment report, dated in December 1993, noted that both testicles and epidermis were found to be normal. An August 1994 treatment report noted the veteran's complaints of right inguinal pain and an enlarged right testicle. The examiner concluded with an assessment of bilateral inguinal hernia. Post-active duty medical records show that in September 1994 the veteran's epididymitis had improved. In November 1994, he sought treatment for right testicular pain for the past four days. Physical examination revealed the right scrotal area to be tender, swollen and red. The examiner noted an impression of epididymitis, and prescribed antibiotics. In March 1995, the veteran underwent bilateral inguinal hernia repair and a bilateral vasectomy. In May 1995, the veteran filed a claim seeking service connection, in pertinent part, for epididymitis. In June 1995, a VA general physical examination was conducted. The report noted that the veteran was currently employed as a correctional officer and had been so since October 1994. Physical examination revealed the right epididymis to be slightly enlarged and slightly tender compared to the left. In October 1995, the veteran sought treatment for right epididymitis. Physical examination revealed a slightly atrophic and tender right testis. The right epididymis was enlarged and not well-delineated from the right testis. The examiner noted an assessment of chronic right epididymitis, and the veteran was treated with antibiotics and anti- inflammatory medication. A follow-up treatment report, dated in November 1995, noted the veteran's testicles and bilateral epididymis to be normal. The report noted a plan for conservative treatment of this condition with antibiotics and anit-inflammatories as needed. In February 1996, the veteran filed his substantive appeal. He said that his epididymitis prevents him from being able to run and swim, and has limited his employment opportunities. He also noted that he was currently employed as a correctional officer. A September 1996 treatment report noted the veteran's complaints of on and off discomfort in the testicles. Physical examination revealed an enlarged and tender epididymis, more prominent on the right. The impression was chronic epididymitis. An October 1996 treatment report noted the veteran's treatment for hypertension and edema. In October 1996, the veteran underwent a cystourethroscopy, urethral dilation, catheter insertion, and epididymectomy. A biopsy report noted epididymis with vascular congestion, periductal fibrosis and mild chronic inflammation consistent with clinical diagnosis of epididymitis. In November 1996, the veteran underwent a right renal biopsy. The biopsy report noted findings of IgA nephropathy with diffuse proliferative and sclerosing glomerulonephritis. A treatment summary report, dated in November 1996, was received from V. Villalon, M.D. The report noted that the veteran was receiving treatment for nephrotic syndrome, with lower extremity swelling for the past two months and episodes of urinary hesitancy, "forking," and hematuria. Genitourinary tract examination revealed some swelling in the right scrotal area. The testes were normal. The veteran also had a Foley catheter in place. The report noted an assessment of nephrotic syndrome as evidenced by mild hypertension, hypercholesterolemia, hypoalbuminemia, and nephrotic range proteinuria. A January 1997 treatment report noted that the veteran was being followed by the neurology department for IgA nephropathy. The report noted that the veteran needed to lose weight and recommended exercise. In April 1997, a hearing was conducted before an RO hearing officer. The veteran testified that his right testicle was tender and painful and limited his physical activities. He reported he wore a scrotal support. He stated that he was employed as a correctional officer. He reported that this job involved a lot of sitting, and he did not have problems with that. A July 1997 report noted treatment for and a diagnosis of IgA nephropathy. A treatment summary report, dated in July 1997, was received from M. Chiang, M.D. The report noted that the veteran had underwent a cystoscopy and retrograde studies and urethral dilation for strictures. It also noted that an epididymectomy had been done for chronic epididymitis. The veteran subsequently had his catheter removed in November 1996, and has not been treated Dr. Chang since that time. In June 2000, the RO sent the veteran correspondence requesting that he identify all treatment, from both private and VA sources, that he has received for his epididymitis since July 1997. The veteran failed to respond to this request. In January 2001, a VA genitourinary examination was conducted. The veteran complained of ongoing pain in the right groin and hemiscrotum, localizing to the right upper testicle. He denied gross hematuria, and reported good urinary stream with normal urinary frequency and nocturia 0 to 1 time a night. He reported experiencing urgency with urge incontinence. He said he did not wear protective undergarments, but changed from white underwear to colored underwear to mask any leakage. The report noted that the veteran has not been on antibiotic therapy for several years. He related he took aspirin approximately every two weeks for flare-ups of the pain. He reported having to limit his physical activity due to recurrence of right scrotal pain with activity. Physical examination revealed a normal circumcised phallus without discharge or lesions. His left testicle and epididymis was nontender. His right testicle was tender at the upper pole. Peripheral examination revealed 1+ edema bilaterally. The report concluded with a diagnosis of chronic epididymitis, status post epididymectomy, now with chronic right upper testicle pain. The VA examiner noted that the veteran used aspirin for pain, and had not been on antibiotics for the last several years as it has been more problematic for the veteran to miss work to see doctors. The VA examiner noted that the veteran has not required drainage or hospitalization for this condition. The VA examiner also noted that the veteran's nephrotic syndrome is unlikely to be caused by his epididymitis. In December 2002, the RO informed the veteran of his rights and responsibilities under the Veterans' Claims Assistance Act of 2000. II. Analysis The veteran contends that his service-connected right epididymitis, status post right vasectomy and right epididymectomy, warrants an initial rating higher than 10 percent. Through correspondence, the rating decision, the statement of the case, and supplemental statements of the case, the veteran has been notified with regard to the evidence necessary to substantiate his claim. Pertinent records have been obtained, and the veteran has been given a VA examination. The Board finds that the notice and duty to assist provisions of the law have been satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability evaluations are determined by the application of a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Chronic epididymo-orchitis is rated under the criteria for urinary tract infection. 38 C.F.R. § 4.115b, Diagnostic Code 7525. Urinary tract infection is rated 10 percent when it requires long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management. Urinary tract infection is rated 30 percent when there is 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. Throughout the current appeal, the veteran has argued that his service-connected right epididymitis is manifested by pain, swelling, and other symptoms that limit his physical activities. However, it must be noted that he has non- service-connected kidney disease, and impairment from that condition may not be considered when rating the service- connected right epididymitis. 38 C.F.R. § 4.14. The veteran was released from active duty at the end of August 1994. He thereafter received periodic treatment for right epididymitis, and in October 1996 he had a right epididymectomy (surgical removal of the epididymis). Since then, he has had complaints of periodic pain and swelling in the right testicle area. At the January 2001 VA examination, it was noted he had not received antibiotic treatment for the right epididymitis condition for several years. He reported taking aspirin for flare-ups of pain. The examination does not describe urinary tract infection associated with right epididymitis, and it was noted the right epididymitis condition did not involve drainage or hospitalization. The examiner noted the veteran's kidney disorder was not related to the right epididymitis condition. The evidence shows that since service the veteran's right epididymitis condition has primarily been manifested by pain in the right testicle area, and, as noted, he has since had a right epididymectomy. The condition has not involved recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management; and thus the criteria of a higher 30 percent rating are not shown. The right epididymitis condition has produced impairment which does not exceed the 10 percent criteria of intermittent intensive management. Again, the non-service-connected kidney problem may not be considered when rating the service- connected right epididymitis condition. In view of the foregoing, the Board finds that the veteran's epididymitis is appropriately rated 10 percent disabling. There are no identifiable periods of time, since the effective date of service connection, during which this condition has been more than 10 percent disabling, and thus higher "staged ratings" are not warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Since the preponderance of the evidence is against the claim for a higher rating for the right epididymitis condition, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A higher rating for right epididymitis, status post right vasectomy and right epididymectomy, is denied. ____________________________________________ L.W. TOBIN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.