Citation Nr: 0001687	
Decision Date: 01/20/00    Archive Date: 01/28/00

DOCKET NO.  98-05 651	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, 
Nevada


THE ISSUES

1.  Entitlement to service connection for tinnitus,  
arthritis of the left great toe, and kidney stones with 
urinary frequency.  

2.  Entitlement to an initial compensable evaluation for a 
left varicocele.  


ATTORNEY FOR THE BOARD

K.L. Salas, Associate Counsel


INTRODUCTION

The veteran has verified active military service from May 
1985 to May 1989 and active duty for training from June 1996 
to September 1996.  It appears that the veteran has had 
periods of inactive duty training.  




This appeal arose from a rating decision by the Department of 
Veterans Affairs (VA) Reno, Nevada wherein the Regional 
Office (RO) denied the veteran's claims.  

The case has been forwarded to the Board of Veterans' Appeals 
(Board) for appellate review.  

It is noted that although the RO has certified for appeal the 
issue of entitlement to service connection for arthritis of 
the cervical spine the veteran specifically stated in his 
substantive appeal that he was not appealing that issue.  

The issues on the title page have been rephrased slightly to 
reflect that there was no finality of adjudication on the 
issue of entitlement to service connection for kidney stones 
with urinary frequency.  

The issues have also been rephrased to reflect that the 
veteran's appeal is from the initial noncompensable 
evaluation assigned for a left varicocele when service 
connection was established.  In the recent case of Fenderson 
v. West, 12 Vet. App. 119 (1999), the Court held that in 
appeals from an initial assignment of a disability 
evaluation, ratings may be staged (i.e., different ratings 
may be assigned for different periods of time).  

The issues of entitlement to service connection for tinnitus, 
arthritis of the left great toe, and kidney stones with 
urinary frequency are addressed in the remand portion of the 
decision.


FINDING OF FACT

The left varicocele is shown to be productive tenderness on 
objective demonstrated.  


CONCLUSION OF LAW

The criteria for an initial compensable evaluation of 10 
percent for a left varicocele have been met.  38 U.S.C.A. 
§§ 1155, 5107 (West 1991);  38 C.F.R. §§ 4.7, 4.118, 
Diagnostic Codes 7804 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Entitlement to an initial compensable 
evaluation for a left varicocele.  

Factual Background

A review of the service medical records shows the veteran was 
diagnosed with and treated for a left varicocele.

The RO granted entitlement to service connection for a left 
varicocele with assignment of a noncompensable evaluation 
when it issued a rating decision in December 1996.  

The veteran obtained a VA examination in September 1997.  The 
examiner noted that after an injury to the veteran's groin in 
a go-cart accident in 1986, the veteran developed a 
confluence of veins in the area.  This was defined as a 
varicocele and the veteran reported that he continued to feel 
it to the present.  He reported problems when on his feet for 
an extended period of time and when sitting or running.  He 
reported chronic discomfort.  

Physical examination showed a clear-cut confluence of veins 
above the left testis, three to four centimeters in size that 
was quite tender.  The diagnosis was left varicocele.  




Kaiser Permanente records show treatment in 1997 for 
varicocele.  The veteran reported left hemi-scrotal pain.  

The veteran submitted a page from the Merck Manual, Sixteenth 
Edition listing a definition of varicocele.  According to the 
Merck Manual, a varicocele is "a collection of large veins, 
usually occurring in the left scrotum and feeling like a 'bag 
of worms.'  It is present in the upright position and should 
empty in the supine position.  The manual noted that a 
symptomatic varicocele could produce pain or a feeling of 
scrotal fullness."  


Criteria

Disability evaluations are determined by the application of a 
schedule of ratings 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 (1999).  
In determining the disability evaluation, VA must acknowledge 
and consider all regulations that are potentially applicable 
based upon the assertions and issues raised in the record, 
and explain the reasons and bases used to support its 
conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

The percentage ratings contained in the rating schedule 
represent, as far as practicable, the average impairment in 
earning capacity resulting from such diseases and injuries 
and their residual conditions in civil occupations.  For 
application of the rating schedule, accurate and fully 
descriptive medical examinations are required with emphasis 
on the limitation of activity imposed by the disabling 
condition.  It is essential, both in examinations, and in the 
evaluation of disability, that each disabling condition be 
viewed in relation to its history.  38 C.F.R. § 4.1 (1999).  
See also 38 C.F.R. § 4.2 (1999).  

The degree of impairment resulting from a disability is a 
factual determination and generally the Board's primary focus 
in such cases is upon the current severity of the disability.  
Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. 
Brown, 6 Vet. App. 396, 402 (1994).  

However, in Fenderson v. West, 12 Vet. App. 119 (1999), the 
Court held that the rule from Francisco does not apply where 
the appellant has expressed dissatisfaction with the 
assignment of an initial rating following an initial award of 
service connection for that disability.  Rather, at the time 
of an initial rating, separate ratings can be assigned for 
separate periods of time based on the facts found, a practice 
known as "staged" ratings.  

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.  
Conjectural analogies will be avoided, as will the use of 
analogous ratings for conditions of doubtful diagnosis, or 
for those not fully supported by clinical and laboratory 
findings.  Nor will ratings assigned to organic diseases and 
injuries be assigned by analogy to conditions of functional 
origin.  38 C.F.R. § 4.20.  

A 10 percent evaluation may be assigned for superficial scars 
which are poorly nourished with repeated ulcerations.  
38 C.F.R. § 4.118; Diagnostic Code 7803.

A 10 percent evaluation may be assigned for superficial scars 
which are tender and painful on objective demonstration.  
38 C.F.R. § 4.118; Diagnostic Code 7804.

Other scars are rated on limitation of function of part 
affected.  38 C.F.R. § 4.118; Diagnostic Code 7805.

Where the minimum schedular evaluation requires residuals and 
the schedule does not provide a noncompensable evaluation, a 
noncompensable evaluation will be assigned when the required 
residuals are not shown.  38 C.F.R. § 4,31 (1999).

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, therefore, to the exceptional case where the 
schedular evaluations 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 extra-schedular evaluation commensurate with the 
average earning capacity impairment due exclusively to the 
service-connected disability or disabilities.  The governing 
norm in these exceptional cases is:  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 as to 
render impractical the application of the regular schedular 
standards.  38 C.F.R. § 3.321(b) (1999).  

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 is assigned.  
38 C.F.R. § 4.7 (1999).

When after consideration of all of the evidence and material 
of record in an appropriate case before VA there is an 
approximate balance of positive and negative evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the veteran.  
38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1999);  38 C.F.R. 
§§ 3.102, 4.3 (1999).  


Analysis

The Board has carefully considered the evidence compiled by 
and on behalf of the veteran and determined that his claim is 
well grounded within the meaning of 38 U.S.C.A. § 5107(a);  
Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  

The veteran's assertions concerning the severity of his left 
varicocele (that are within the competence of a lay party to 
report) are sufficient to conclude that his claim for an 
initial compensable evaluation for that disability is well 
grounded.  King v. Brown; 5 Vet. App. 19 (1993).

The Board is satisfied that all relevant facts have been 
adequately developed for the purpose of adjudicating the 
claim; no further assistance in developing the facts 
pertinent to the claim is required to comply with the duty to 
assist as mandated by 38 U.S.C.A. § 5107(a).  Godwin v. 
Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. 
App. 519 (1991).

The evidence shows that on VA examination in September 1997 
palpation of the left varicocele disclosed what was described 
as a clear-cut confluence of veins above the left testis, 
three to four centimeters in size that was quite tender.  The 
Board finds that the above clinical findings are analogous to 
a scar which is tender and painful on objective demonstration 
thereby warranting assignment of a 10 percent evaluation 
under Diagnostic Code 7804.  The 10 percent evaluation is the 
maximum evaluation assignable under this Diagnostic Code.

As the Board noted earlier, this case involves the initial 
grant of service connection for a left varicocele.  Under 
Fenderson supra, separate ratings may be assigned for 
separate periods of time, a practice known as "staged" 
ratings.  The Board finds no basis upon which to predicate 
assignment of staged ratings for the veteran's left 
varicocele.

Additional Matter

The Court has held that the Board is precluded by regulation 
from assigning an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1) in the first instance.  Floyd v. Brown, 9 Vet. 
App. 88 (1996).  However, the Board is still obligated to 
seek all issues that are reasonably raised from a liberal 
reading of documents or testimony of record and to identify 
all potential theories of entitlement to a benefit under the 
law or regulations.  

In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court 
clarified that it did not read the regulation as precluding 
the Board from affirming an RO conclusion that a claim does 
not meet the criteria for submission pursuant to 38 C.F.R. 
§ 3.321(b)(1), or from reaching such conclusion on its own.  
In the veteran's case at hand, the Board notes that while the 
RO provided the veteran with the criteria referable to 
assignment of extraschedular evaluations, it did not actually 
discuss the provisions in light of his claim.  

The Court has further held that the Board must address 
referral under 38 C.F.R. § 3.321(b)(1) only where 
circumstances are presented which the VA Undersecretary for 
Benefits or the Director of the VA Compensation and Pension 
Service might consider exceptional or unusual.  Shipwash v. 
Brown, 8 Vet. App. 218, 227 (1995).

The Board does not find the veteran's disability picture to 
be unusual or exceptional in nature as to warrant referral of 
his case to the Director or Undersecretary for review for 
consideration of extraschedular evaluation under the 
provisions of 38 C.F.R. § 3.321(b)(1).

The current schedular criteria adequately compensates the 
veteran for the current demonstrated nature and extent of 
severity of his left varicocele.  Having reviewed the record 
with these mandates in mind, the Board finds no basis for 
further action on this question.

There has been no showing by the veteran of extraordinary or 
exceptional disability from the service connected disability, 
beyond that contemplated by the rating schedule, such as 
frequent periods of hospitalization or marked interference 
with employment due to the service connected disorder.  
Therefore, there exists no basis upon which to refer the 
veteran's case to the Director of the VA Compensation and 
Pension Service for consideration of extraschedular 
evaluation under 38 C.F.R. § 3.321(b)(1).  


ORDER

Entitlement to an initial compensable evaluation of 10 
percent for a left varicocele is granted, subject to the 
governing criteria applicable to the payment of monetary 
awards.  


REMAND

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the United States Court of Appeals for Veterans 
Claims (Court) for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans' Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).  
In addition, VBA's Adjudication Procedure Manual, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

New and material evidence is not required to reopen the claim 
for entitlement to service connection for kidney stones with 
urinary frequency.  Entitlement to service connection was 
denied for this disorder in January 1997 and in May 1997 the 
veteran submitted a written statement, which, while stating 
that he wished to "reopen" the claim, is most appropriately 
construed as disagreement with the decision.  

The Court has held that before the Board addresses a question 
that has not been considered by the RO, it must consider 
whether the veteran has been given adequate notice of the 
need to submit evidence or argument, an opportunity to submit 
such evidence or argument, an opportunity to address the 
question at a hearing, and whether or not the claimant has 
been prejudiced by being denied those opportunities.  Bernard 
v. Brown, 4 Vet. App. 384 (1993).  On remand the RO should 
conduct a de novo review of the issue.  


It is also noted that the veteran contends that the RO has 
not considered all of the evidence submitted to it in its 
rating decisions and statement of the case.  A supplemental 
statement of the case listing and considering all of the 
evidence submitted by the veteran is in order.  

Additionally, the Board notes that subsequent to a forwarding 
of the appellant's claim to the Board for appellate review, a 
substantial quantity of additional evidence was submitted by 
the veteran and associated with the claims file.  The 
additional evidence is relevant to the issues of service 
connection for tinnitus, arthritis of the left great toe, and 
kidney stones with urinary frequency.  The veteran did not 
waive initial consideration of this additional evidence by 
the RO.

In cases where additional evidence is submitted by the 
appellant or representative, the claim must be referred to 
the agency of original jurisdiction for review and 
preparation of a supplemental statement of the case unless 
this procedural right is waived by the appellant or 
representative.  38 C.F.R. § 20.1304 (1999).

In addition, a supplemental statement of the case, so 
identified, will be furnished to the appellant, when 
additional pertinent evidence is received after the most 
recent supplemental statement of the case has been issued.  
38 C.F.R. § 19.31 (1999).

Finally, the veteran's statements raise the question of 
consideration of additional laws and regulations and of the 
question of verification of service.  The veteran maintained 
in May 1997 that treatment for kidney stones during 1992 was 
during annual training.  

The veteran only has verified active duty for 1985 to 1989 
and active duty for training in 1996.  Service connection can 
only be established for disease or injury incurred in the 
line of duty during a period of active duty or active duty 
for training and for injuries incurred during a period of 
inactive duty training.  38 C.F.R. §§ 3.6, 3.303.  



As a matter of due process, the RO should determine the 
nature of all periods of the veteran's service, address 
38 C.F.R. § 3.6, and depending on the facts found, adjudicate 
the veteran's claim based on either a direct incurrence, or 
aggravation basis.  

Therefore to ensure that the veteran is afforded due process 
of law, the Board is deferring adjudication of the claim of 
entitlement to service connection for multiple disorders 
pending a remand of the case to the RO for further 
development as follows:  

1.  The appellant has the right to submit 
additional evidence and argument on the 
matter or matters the Board has remanded 
to the RO.  Kutscherousky v. West, 12 
Vet. App. 369 (1999).

2.  The RO should verify all periods of 
service for the veteran.  

3.  The RO should review the veteran's 
statements on file referable to exclusion 
of submitted evidence from the statement 
of the case on file, review the 
additional evidence submitted subsequent 
to forwarding of his case to the Board 
for appellate review, readjudicate the 
claim of entitlement to service 
connection for kidney stones with urinary 
frequency on a de novo basis.  

If the benefits requested on appeal are not granted to the 
veteran's satisfaction, the RO should issue a supplemental 
statement of the case ensuring that all evidence submitted by 
the veteran is considered.  A reasonable period of time for a 
response should be afforded.  

Thereafter, the case should be returned to the Board for 
further appellate review, if otherwise in order.  By this 
remand, the Board intimates no opinion as to any final 
outcome warranted.  No action is required of the veteran 
until he is notified by the RO.  



		
	RONALD R. BOSCH
	Member, Board of Veterans' Appeals