Citation Nr: 0007125 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-05 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to restoration of a 10 percent evaluation for status post left varicocelectomy. 2. Entitlement to an initial evaluation in excess of 10 percent for status post left varicocelectomy. 3. Entitlement to special monthly compensation based upon loss of use of a creative organ. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert W. Legg, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran had active service from November 1990 to December 1996. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The medical evidence of record at the time of an April 1999 rating reduction does not demonstrate that the veteran's status post left varicocelectomy underwent improvement, reasonably certain to continue under the ordinary conditions of life and work. 3. The veteran's status post left varicocelectomy is manifested by complaints of pain. 4. The veteran's left testicle is normally-sized, and the veteran has not been shown to be infertile. CONCLUSIONS OF LAW 1. Restoration of a 10 percent evaluation for status post left varicocelectomy is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.105, 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7804 (1999). 2. An initial evaluation in excess of 10 percent for status post left varicocelectomy is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.105, 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7804 (1999). 3. Special monthly compensation for the loss of use of a creative organ is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.350(a)(1); 4.115b, Diagnostic Code 7524, Note 1 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims are plausible and thus well-grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to his claims and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. Disability ratings in this case are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4 (1996 and 1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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 required for that rating. 38 C.F.R. § 4.7. In July 1996, the veteran complained of an inability to impregnate his wife. He was concerned about infertility. The veteran denied pain or physical limitation. The military clinician noted that the veteran's wife underwent a fertility examination and was found to be fertile. Upon examination, the veteran's left testes felt "worm like," and slightly tender. He was diagnosed with varicocele, and a varicocelectomy was recommended. That procedure was performed. In May 1997, the veteran was provided his first VA examination. The veteran's history was reviewed, as were the veteran's concerns about an inability to procreate. The veteran had recent complaints of pain, which varied in intensity. The veteran specifically noted pain in the inguinal ligament in the area of the incision. There was no tenderness in the testes by palpation, but the veteran did have anticipatory pain noted during the general medical portion of the report. Testes were described as normal bilaterally, as were the cords. The veteran's six-year marriage with the absence of progeny was acknowledged, and the veteran reported work-ups for infertility. The same physician who performed the general medical portion of the May 1997 VA examination noted pain on palpation of the scar during the genitourinary examination portion of the examination. A June 1997 VA treatment record noted substantially similar results. A November 1997 treatment record from Cedarwood Medical Center noted a history of a low sperm count. Testes were bilaterally descended, with a left inguinal incision scar, which was mildly tender. The veteran and his wife still did not have children. A semen analysis showed a low volume, with two million sperm per cubic centimeter. Motility was described as 1+, with 50 percent motility. These results were described as within normal limits. The possibilities of in vitro fertilization or a gamete transfer were explained. In October 1998, the veteran was again provided a VA examination. His history was reviewed. The examiner's impression was that the veteran's central complaint was related to an inability to procreate. The veteran related that he continued to have pain on running or stretching. The examiner stated that the veteran had a well healed post- operative scar that was consistent with his varicocele repair. Both testicles were firm, without abnormality, and were also described as normal in size. The examiner stated that the cause of any diminished motility was uncertain. Moreover, the examiner stated that it was well known that the absence of a testicle would not preclude an ability to procreate. Further, this examiner stated that sperm morphology greater than 80 percent is considered normal, and the veteran's was 80 percent. The examiner concluded that the veteran could procreate. I. Restoration A reexamination showing improvement of the disability may warrant a reduction in the assigned evaluation. 38 C.F.R. § 3.344(c) (1999). In rating reduction cases VA must also satisfy the procedural due process requirements contained in 38 C.F.R. § 3.105. 38 C.F.R. § 3.105(e) provides that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (h) of this section, if additional evidence is not received within that period, a final rating action will be taken and 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. 38 U.S.C.A. § 5112(b)(6) (West 1991); 38 C.F.R. § 3.105(e). The RO informed the veteran of its proposed reduction in correspondence dated January 1999. In February 1999, the RO received correspondence from the veteran indicating that he disagreed with the proposed reduction. No further information was received, however, and in an April 1999 rating decision, the RO reduced the evaluation effective July 1999. It appears that the RO complied with the notice requirements of 38 C.F.R. § 3.105. 38 C.F.R. §§ 4.2 and 4.10 provide that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement in a disability actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. The RO reduced the veteran's evaluation on the basis of the October 1998 VA examination, finding that these results showed that the veteran's level of disability had decreased from that shown previously. The Board finds, however, that the level of disability attributable to residuals of a left varicocelectomy has remained substantially the same since the time of the veteran's initial claim for service connection. In this respect, the veteran had complaints of pain in May 1997, which led to the 10 percent evaluation, and he continued to have complaints of pain with running and stretching in October 1998. While the resulting scar was described as well healed in October 1998, no comment as to tenderness on palpation is contained in the October 1998 VA examination report. Although the nomenclature used by the May 1997 VA examination report and the October 1998 VA examination report are not identical, they essentially portray the same symptoms. In light of the above, the Board finds that the medical evidence of record at the time of the April 1999 rating reduction warrants restoration of a 10 percent evaluation for the veteran's status post left varicocelectomy. II. Evaluation In a recent decision, the United States Court of Appeals for Veterans Claims (Court) distinguished between an appeal of a decision denying a claim for an increased rating from an appeal resulting from a veteran's dissatisfaction with an initial rating assigned at the time of a grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). In the latter event, the Court, citing the VA's position, held that "staged" ratings could be assigned, in which separate ratings can be assigned for separate periods of time based on the facts found. This is a somewhat different view than that found in Francisco, in which the Court held that the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that case, however, an increased rating was at issue. As noted above, the level of disability attributable to the veteran's service connected disorder has remained substantially the same during this claim, and thus a "staged" rating is not warranted. The RO has evaluated the veteran's status post left varicocelectomy by analogy under Diagnostic Code 7804. (Analogous ratings are allowed by 38 C.F.R. § 4.20.) That code provides that a 10 percent evaluation is warranted for a superficial scar that is tender and painful on objective examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999). A higher evaluation is not available under this diagnostic code. In light of the above, the Board finds that the preponderance of the evidence is against the assignment of an initial evaluation in excess of 10 percent under Diagnostic Code 7804. In a similar manner, the Board finds that an initial evaluation in excess of 10 percent is not warranted under other potentially applicable diagnostic codes. Diagnostic Code 7523 does not provide for a compensable evaluation for complete atrophy of only one testicle, and Diagnostic Code 7524 does not provide for a compensable evaluation for the complete removal of one testicle. Thus, an initial evaluation in excess of 10 percent is not warranted under either of these alternative Diagnostic Codes. Finally, the Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (1999). In this regard, the Board finds that there has been no assertion or showing by the veteran that the veteran's status post left varicocelectomy has resulted in marked interference with his employment or necessitated frequent periods of hospitalization. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Special Monthly Compensation Special monthly compensation is payable when a veteran suffers from loss or loss of use of a creative organ as a result of a service connected disability. Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Loss of use of one testicle will be established when examination by a board finds that: (a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or (b) The diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) If neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board, including a urologist, and accepted by the veteran, establishes the absence of spermatozoa. 38 C.F.R. § 3.350(a)(1); 4.115b, Diagnostic Code 7524, Note 1 (1999). In light of the above, the Board finds that special monthly compensation is not warranted for loss of use of a creative organ. In this regard, the veteran's testicles were noted to be of normal size at the time of the October 1998 VA examination, and thus, special monthly compensation is not warranted under paragraphs (a) or (b) of 38 C.F.R. § 3.350(a)(1). Similarly, the veteran has consistently shown the presence of sperm during both private treatment and VA examinations. As such, special monthly compensation is not warranted under paragraph (c) of 38 C.F.R. § 3.350(a)(1). Ultimately, the record does not reflect that the veteran has lost the ability to procreate as a result of his service connected disability. Accordingly, the Board finds that the preponderance of the evidence is against a claim for special monthly compensation based upon loss of use of his creative organs. The evidence is not in equipoise and the benefit of the doubt rule is not applicable. 38 C.F.R. § 3.102 (1999). ORDER Restoration of a 10 percent evaluation for service-connected status post left varicocelectomy is granted. An initial evaluation in excess of 10 percent for service- connected status post left varicocelectomy is denied. A claim for special monthly compensation based upon loss of use of a creative organ is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals