BVA9500564 DOCKET NO. 91-17 426 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for atrophy of the right testicle. 2. Entitlement to an increased rating for defective hearing, evaluated as 20 percent disabling. 3. Entitlement to an increased (compensable) rating for atrophic left testicle, post mumps orchitis. 4. Entitlement to an effective date earlier than August 12, 1988, for special monthly compensation for loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from May 1968 to May 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1989 rating decision, which included denials of increased ratings for the veteran's service-connected defective hearing and atrophic left testicle, and established special monthly compensation for loss of use of a creative organ. The Board remanded the appeal to the RO for further development in November 1992, to include evaluation and adjudication of the intertwined issue of service connection for atrophy of the right testicle. An August 1993 rating decision increased the disability rating for the veteran's defective hearing to 20 percent, denied service connection for atrophy of the right testicle, and upheld the denial of an increased rating for atrophic left testicle. CONTENTIONS The veteran contends that his service-connected defective hearing and atrophic left testicle are productive of greater impairment than reflected by the ratings currently assigned, and that service connection is warranted for atrophy of the right testicle, because it was caused by the same episode of mumps which produced his atrophic left testicle. He also contends that the effective date for the award of special monthly compensation for loss of use of a creative organ (the left testicle) should be May 5, 1971, the day he was separated from active service. It is asserted that the most recent VA audiology and urology examinations were inadequate, and that the Board should remand this case to provide proper evaluations. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims of service connection for atrophy of the right testicle, increased ratings for defective hearing and atrophic left testicle, and an effective date earlier than August 12, 1988, for special monthly compensation for loss of use of a creative organ. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. The medical evidence shows that the veteran does not have atrophy of the right testicle due to an episode of mumps during his active service. 3. A VA audiological examination on April 13, 1993, showed pure tone thresholds in the four frequencies from 1,000 to 4,000 hertz which averaged 69 decibels in the right ear and 75 decibels in the left ear. These results were reported as translating to numeric designations of V in the right ear, and VI in the left ear. 4. The veteran reports left testicular pain; the most recent clinical findings disclose atrophy of the left testicle with "absolutely no tenderness" of the left testicle, epididymis, or cord. 5. Prior to a November 1988 VA examination, it was not shown that the veteran met the criteria for loss of use of a creative organ. 6. A May 1989 rating decision established special monthly compensation for loss of use of a creative organ (left testicle), effective from August 12, 1988, the date of receipt of the veteran's claim. CONCLUSIONS OF LAW 1. Atrophy of the right testicle was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1993). 2. The schedular criteria for rating greater than 20 percent for defective hearing are not met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.85, Part 4, Code 6102 (1993). 3. A compensable disability rating for an atrophic left testicle, post mumps orchitis, is not warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, Code 7523 (1993). 4. An effective date earlier than August 12, 1988, for the assignment of special monthly compensation for loss of use of a creative organ is not warranted. 38 U.S.C.A. §§ 1110, 1114, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.350, 3.400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly requested by the RO for development of this appeal. After careful review of the complete record, the Board finds that the April 1993 VA audiology and fee-basis urology examinations were thorough and provide sufficient clinical evidence for equitable evaluations of the disabilities on appeal. I. Service Connection for Atrophic Right Testicle Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge where the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). The veteran's service medical records, while noting atrophy of the left testicle due to mumps, are negative for complaints or findings of atrophy of the right testicle. Likewise, VA examinations in May 1975 and February 1983 noted atrophy of the left testicle, without findings indicative of atrophy of the right testicle. During the May 1975 examination the veteran reported that his left testicle had been "smaller than the other one" since an episode of mumps during service, and that he had radiating left testicular pain "in cold weather or after exertion or intercourse." A January 1983 analysis of the veteran's semen was reported as revealing 8.7 million sperm per milliliter, a motility of 48 percent, and normal morphology of 75 percent. The first suggestion of atrophy of the right testicle was a report of a November 1988 VA fee-basis urology examination which disclosed an impression of atrophic testes with chronic left epididymal orchitis caused by mumps orchitis. The examiner noted that the veteran's right testicle was larger than the left, and that both were soft to palpation. A July 1993 VA fee-basis urology examination revealed that the veteran's "left testis was atrophic [and that his] right testis was small but definitely not atrophic." Following the examination, the examiner stated that while the veteran's left testis was atrophied due to mumps during service, "[h]is right testicle was unaffected and subsequently [he] had five children who are now ages 8 through 16, all of whom were born after his mumps orchitis." Upon review of the total evidence, the Board is heavily influenced by the fact that the veteran's April 1971 separation examination, and the physical examinations during the decade following his service, are negative for any evidence of atrophy of the right testicle. Certainly, such an abnormality of the right testicle would have been readily observed, since examinations were conducted over the years to monitor atrophy of the left testicle. The Board finds that this evidence, in combination with the report of the extensive July 1993 examination noting a small, but not atrophic, right testicle, is far more persuasive than the November 1988 examiner's impression. Accordingly, based on the total evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim of service connection for atrophy of the right testicle. II. Increased Ratings Disability evaluations are determined by the application of a schedule for rating disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A. Defective Hearing The veteran's service medical records disclose that bilateral hearing loss was present at the time of his separation from service. A rating decision in July 1975 established service connection for bilateral defective hearing and assigned a noncompensable disability rating effective from March 12, 1975, the date of receipt of the veteran's original claim. Under the law, the evaluation of the veteran's service-connected defective hearing turns on the average pure tone threshold at the specified frequencies and percentage of discrimination in each ear, as compared with the criteria in the VA rating schedule. The criteria are established to provide an accurate measurement of hearing impairment and appropriate compensation to hearing disabled veterans. The noncompensable disability rating assigned by the July 1975 rating decision was based upon a VA audiometric examination in May 1975 which showed average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 25 decibels in the right ear and 32.5 decibels in the left ear, with speech discrimination abilities of 98 percent and 94 percent respectively. These findings are translatable to designations which, as properly assessed by the RO in the July 1975, warrant a noncompensable evaluation under Diagnostic Code 6100 of the VA rating schedule. 38 C.F.R. Part 4, Code 6100. A November 1988 VA audiological examination revealed average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 35 decibels in the right ear and 54 decibels in the left ear, with speech discrimination abilities of 90 percent and 86 percent respectively, which translate to numeric designations of II in each ear and warranted continuation of the noncompensable evaluation under Diagnostic Code 6100. A VA audiological examination conducted at the University of Hawaii on April 13, 1993, revealed average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 69 decibels in the right ear and 75 decibels in the left ear. The examiner was unable to assess the veteran's speech discrimination "because of [his] dialect, misarticulation and unfamiliarity with select test items," and recommended that his hearing disability be evaluated "based on pure tone results." In a May 1993 report, a VA audiology consultant in Seattle, Washington, opined that the veteran's continued residence in Pago Pago, American Samoa, may explain the interference with the current ability to obtain speech discrimination scores. The consultant evaluated all of the veteran's hearing tests of record since May 1975, and recommended that only the "pure tone thresholds" obtained on April 13, 1993, be utilized for evaluation, noting that they translated to numeric designations of V in the right ear and VI in the left ear. An August 1993 rating decision increased the rating for the veteran's service-connected defective hearing to 20 percent, effective from April 13, 1993, the date of the most recent audiological examination. The examination results translated to numeric designations of V in the right ear and VI in the left ear, as noted, which warrant a 20 percent evaluation under Diagnostic Code 6102 of the VA rating schedule. 38 C.F.R. Part 4, Code 6100. A report of an April 7, 1993, audiogram, conducted at the L.B.J. Tropical Medical Center, was received from the veteran in December 1993. That examination revealed bilateral pure tone thresholds which were higher at the frequencies of 1,000 and 2,000 hertz, and lower at 4,000 hertz frequency, than those obtained at the VA examination several days later. Upon review of the evidence, the Board notes that both the April 7, 1993, private examination, and the April 13, 1993, VA examination failed to provide a speech discrimination evaluations. In addition, the April 7, 1993, private examination did not test the veteran's hearing acuity at the frequency of 3,000 hertz, as required for an average pure tone threshold measurement and evaluation under the VA rating schedule. In essence, there is no clinical evidence negating the results of the VA's recent audiological evaluations, and the Board finds that the preponderance of the evidence is against the claim for an increased rating greater than the currently assigned 20 percent for the veteran's service-connected defective hearing. B. Atrophic Left Testicle The veteran has atrophy of the left testicle resulting from mumps during his active service. A May 1975 VA examination disclosed that the veteran's left testicle was approximately half the size of the right testicle, and measured 1 3/4 inches by approximately 3/4 inches in diameter. The genitalia were nontender and otherwise negative. The diagnosis was atrophic left testicle, post mumps orchitis. A July 1975 rating decision established service-connection for an atrophic left testicle, post mumps orchitis, and assigned a noncompensable disability rating effective from March 12, 1975, the date of receipt of the veteran's original claim. The atrophic left testicle is evaluated under Diagnostic Code 7523, which provides a noncompensable rating for complete atrophy of one testicle. A 20 percent rating is warranted for complete atrophy of both testicles. 38 C.F.R. Part 4, Code 7523. During a November 1988 VA fee-basis examination the veteran complained of chronic left testicular pain. The right testicle was larger than the left, both were soft to palpation, and there was tenderness to palpation of the left epididymis and testis. The impression was atrophic testes with chronic left epididymal orchitis caused by mumps orchitis. The examiner opined that a left orchidectomy would relieve the reported left testicular pain, but that the veteran was not interested in orchidectomy. A report of a VA fee-basis examination in July 1993 disclosed that there was "absolutely no tenderness to [the veteran's] left testicle, ...left epididymis, ...or left cord." Following the examination, the examiner opined that the veteran "definitely does not have chronic pain from his left testicle or left epididymitis from his mumps orchitis" during service, and concluded that such residual from mumps orchitis "would be a very rare phenomenon anyway, especially 23 years later." As established by the clinical evidence, the veteran has atrophy of the left testicle which is attributed to mumps orchiditis during service, and is properly rated as a noncompensable disability under Diagnostic Code 7523. However, as previously determined, he does not have atrophy of the other (right) testicle, an integral part of the criteria required for the next higher rating under Diagnostic Code 7523, and the objective evidence fails to confirm findings which reflect that a compensable ratings is indicated. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim of an increased rating for atrophy of the left testicle. Finally, the evidence discussed above does not suggest that the veteran's service-connected defective hearing or atrophic left testicle presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321 (1993). Since the negative evidence outweighs that which is positive on the merits of these issues, the veteran cannot be given the benefit of the doubt since no such doubt arises. III. Earlier Effective Date for Special Monthly Compensation The effective date of an evaluation and award of compensation or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. 1110; 38 C.F.R. 3.400. Special monthly compensation under 38 C.F.R. § 3.350(a)(1)(i) is warranted if the veteran, as the result of service-connected disability, has loss of use of one testicle (a creative organ) established by examination finding 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 altercation of consistency of the affected testicle, or (c) when a biopsy establishes the absence of spermatozoa. In essence, the veteran claims that the effective date for special monthly compensation benefits for loss of use of a creative organ (left testicle) should be the day he was separated from service, since the actual "loss of use" was incurred following an episode of mumps in service. Initially, the Board notes that there is no evidence of a biopsy which would tend to establish the absence of spermatozoa, as required to establish the benefit at issue under 38 C.F.R. § 3.350(a)(1)(i)(c). In fact, the first related medical evidence of record was the January 1983 semen analysis, which showed the presence of spermatozoa. A VA examination in May 1975 disclosed that the veteran's left testicle was approximately half the size of the right testicle. While this evidence shows that the left testicle was not atrophied enough to meet the criteria under 38 C.F.R. § 3.350(a)(1)(i)(a), such atrophy was enough to meet a portion of the criteria set forth under 38 C.F.R. § 3.350(a)(1)(i)(b). However, the examination also revealed that his left testicle was nontender and otherwise negative, falling short of the additional criteria requirement of "alteration of consistency" of the affected testicle under 38 C.F.R. § 3.350(a)(1)(i)(b). The veteran submitted a Statement in Support of Claim (VA Form 21-4138) that included a claim for an increase in disability compensation for the "residuals of mumps," which was received by the RO on August 12, 1988. The first medical evidence of record indicative of the required "alteration of consistency" of the affected testicle, was the report of a November 1988 VA fee-basis examination disclosing that the testicle was "soft" to palpation. Although that examination did not provide comparative measurements of the testicles (noting only the right testicle was "bigger" than the left), the findings reported in connection therewith were determined to be sufficient to meet the criteria under 38 C.F.R. § 3.350(a)(1)(i)(b) and establish entitlement to special monthly compensation for loss of use of a creative organ. A May 1989 rating decision established special monthly compensation based on loss of a creative organ, with an effective date of August 12, 1988, the date of receipt of the veteran's claim. While the May 1989 rating decision granted special monthly compensation benefits on account of the loss of use of a creative organ based on the medical opinion rendered in connection with the November 1988 fee basis examination that the veteran was probably infertile to low sperm count, this determination was not consistent with the provisions of 38 C.F.R. § 3.350(a)(1)(i)(c). In addition, the Board finds this opinion to be speculative in nature and not supported by the evidence of record. It is pertinent to note in this regard that the recent 1993 examination for VA indicated that the veteran's 1983 semen analysis results were "obviously low but inconsequential since he did have children since his mumps orchitis" in service. The examiner added that the veteran's serum testosterone was within the normal range when tested in connection with the 1993 examination and that, as noted hereinabove, his right testis was "small but definitely not atrophic." Based on his review of the case, the examiner concluded that the veteran had been rendered neither infertile nor impotent due to his mumps orchitis in service. Thus, the more persuasive evidence of record does not provide a basis for the assignment of an effective date earlier than August 12, 1988. Upon review of the evidence, the Board finds that the first actual medical evidence of record even suggesting that the veteran might meet the criteria under 38 C.F.R. § 3.350(a)(1) was during the VA fee-basis examination in November 1988. However, in light of the highly probative evidence currently of record substantiating that the veteran did not meet the applicable criteria prior to the November 1988 examination, the Board finds that the preponderance of the evidence is against an effective date earlier than August 12, 1988, for the assignment of special monthly compensation based on loss of use of a creative organ. ORDER Service connection for atrophy of the right testicle, an increased rating for defective hearing or atrophic left testicle, and an effective date earlier than August 12, 1988, for special monthly compensation for loss of use of a creative organ are denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). 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.