VARICOCELE OR HYDROCELE

Summary

The veteran, who served in the U.S. Army from February 1978 to July 1981, appeals the Department of Veterans Affairs Regional Office's (RO) decision denying a compensable rating for his service-connected left testicular varicocele and entitlement to special monthly compensation (SMC) for loss of use of a creative organ. The RO had assigned a 0 percent rating for the varicocele. The veteran contended that a higher rating was warranted, citing symptoms including swelling, difficulty sleeping, pain radiating to the hip, and erectile dysfunction. The Board reviewed the evidence, including VA examinations and treatment records. A March 2017 VA opinion was found to lack probative value as it was based on inaccurate premises regarding the veteran's ability to report erectile dysfunction and the lack of clinical evidence. A subsequent March 2020 VA examination noted the veteran's symptoms, including pain and difficulty with daily activities due to the varicocele, and that he was taking Gabapentin for pain. The Board found that while varicocele was not specifically listed in the rating schedule prior to November 14, 2021, it could be rated by analogy. Applying the benefit of the doubt, the Board found a 10 percent rating warranted by analogy under Diagnostic Code 7120 for varicose veins, due to the veteran's reported symptoms of swelling, pain, and difficulty with daily activities. The Board also found entitlement to SMC(k) for loss of use of a creative organ, citing lay and medical evidence of erectile dysfunction. The Board denied a higher rating under Diagnostic Code 7120 due to lack of persistent edema and denied higher ratings under other codes due to lack of evidence of atrophy or other related conditions.

Rationale

Rating granted by analogy under DC 7120 for varicose veins; Symptoms include swelling, difficulty sleeping, pain radiating to hip; Higher rating not warranted due to lack of persistent edema or atrophy

Full Decision Text

Citation Nr: 22063917
Decision Date: 11/15/22	Archive Date: 11/15/22

DOCKET NO. 18-08 463
DATE: November 15, 2022

ORDER

Entitlement to a 10 percent rating, but no higher, for left testicular varicocele is granted. 

Entitlement to special monthly compensation (SMC) due to loss of use of a creative organ is granted.

FINDINGS OF FACT

1. The Veteran has required the use of anticonvulsant medication to suppress symptoms of left testicular varicocele.

2. The Veteran's left varicocele has been manifested by swelling, difficulty sleeping, and pain in the leg/hip.

3. The Veteran is entitled to SMC as due to loss of use of a creative organ.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 10 percent rating, but no higher, for left testicular varicocele have been met. 38 U.S.C. §§ 1155, 5100, 5103; 38 C.F.R. §§ 3.159, 4.115a, 4.115b, Diagnostic Codes 7120, 7523, 7525, 7543.

2. The criteria for entitlement to SMC based on loss of use of a creative organ have been met. 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.159, 4.115a, 4.115b, Diagnostic Codes 7120, 7523, 7525, 7543.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran was discharged under honorable conditions after serving in the U.S. Army from February 1978 to July 1981.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which assigned a temporary disability evaluation of 100 percent for left testicular varicocele from April 2015 to May 2015, and a 0 percent disability rating thereafter.

The Veteran submitted a Notice of Disagreement (NOD) in July 2015 requesting a higher disability evaluation for left testicular varicocele.  The RO issued a Statement of the Case (SOC) in November 2017 continuing evaluation of 0 percent for left testicular varicocele.  In January 2018, the Veteran timely submitted an Appeal to the Board, declining an optional Board hearing.

The RO issued a Supplemental Statement of the Case (SSOC) continuing evaluation of 0 percent for left testicular varicocele.  The Board issued a remand in January 2020 for left testicular varicocele, requesting a new VA examination.  After such examination was completed in March 2020, the RO issued a second SSOC continuing evaluation of 0 percent for left testicular varicocele.  The matter now comes to the board for consideration.

Disability Ratings Laws and Regulations

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).   The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 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.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

Entitlement to a 10 percent rating, but no higher, for left testicular varicocele is granted.

The Veteran contends that a compensable rating is warranted for his service-connected left varicocele which is currently rated as noncompens
, 4.2, 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.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

Entitlement to a 10 percent rating, but no higher, for left testicular varicocele is granted.

The Veteran contends that a compensable rating is warranted for his service-connected left varicocele which is currently rated as noncompensable under 38 C.F.R. § 4.115b, Diagnostic Code 7523, relating to atrophy of the testis.

Under Diagnostic Code 7523, a noncompensable rating is assigned for complete atrophy of one testis, and a 20 percent rating is assigned for complete atrophy of both testes.  38 C.F.R. § 4.115(b), Diagnostic Code 7523.

On November 14, 2021, during the pendency of the appeal, VA added a new diagnostic code that specifically addresses varicoceles.  38 C.F.R. § 4.115b, Diagnostic Code 7543.  If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C. § 5110(g).  If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change.  If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change.  38 U.S.C. § 5110.

Effective November 14, 2021, new Diagnostic Code 7543 for varicocele or hydrocele assigns a noncompensable rating and directs adjudicators to consider the application of special monthly compensation for loss of use of a creative organ.  38 U.S.C. § 1114(k).  Ratings for the Genitourinary System Diagnoses, 86 Fed. Reg. 54086 (Sept. 30, 2021).

SMC is a statutory award, in addition to awards based on the schedular evaluations provided by the diagnostic codes in the VA Rating Schedule.  Claims for special monthly compensation, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114(k)(s); 38 C.F.R. §§ 3.350, 3.352.  Under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(1), special monthly compensation is payable at a specified rate if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs.  Id.  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.  Id.

Prior to November 14, 2021, varicoceles were not specifically listed in the Rating Schedule.  For conditions that are not specifically listed, VA regulations provide that those conditions may be rated by analogy under the Diagnostic Code of a closely related disease or injury.  38 C.F.R. § 4.20.

A varicocele is a swelling of the vein inside the scrotum.  See National Library of Medicine, Varicocele, https://medlineplus.gov/ency/article/001284.htm.  A varicocele forms when valves inside the veins that run along the spermatic cord prevent blood from flowing properly, and blood backs up, leading to swelling and widening of the veins, which is similar to varicose veins in the legs.  See National Library of Medicine.

Under Diagnostic Code 7120, a 10 percent rating is assigned for varicose veins with intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery.  A 20 percent rating is assigned for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema.  A 40 percent rating is assigned for persistent edema and stasis pigmentation or ecz
 blood from flowing properly, and blood backs up, leading to swelling and widening of the veins, which is similar to varicose veins in the legs.  See National Library of Medicine.

Under Diagnostic Code 7120, a 10 percent rating is assigned for varicose veins with intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery.  A 20 percent rating is assigned for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema.  A 40 percent rating is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.  A 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration.  A 100 percent rating is assigned for massive board-like edema with constant pain at rest.  38 C.F.R. § 4.104, Diagnostic Code 7120.

The evidence includes a March 2017 VA male reproductive system disability benefits questionnaire.  At that time, the Veteran specifically reported that he started having erectile dysfunction approximately 1.5 years ago following his hydrocele surgery.  The Veteran also reported having scrotal swelling.   

In a corresponding March 2017 VA medical opinion, the examiner opined that the Veteran's erectile dysfunction was less likely than not due to his service-connected varicocele disability.  In support of this opinion, the examiner stated that the Veteran's claim for erectile dysfunction was based "only" on his history "without clinical evidence to substantiate his claim."

The Board finds the March 2017 VA medical opinion to lack probative value as it is based on inaccurate factual premises.  First, the Veteran is competent to report erectile dysfunction as this is a symptom capable of lay observation.  Further, VA treatment records confirm that the Veteran has been prescribed Sildenafil Citrate (brand name, Viagra).  See e.g., July 2017 VA treatment record (medication list). 

The Veteran was afforded a new VA examination for his left testicular varicocele in March 2020.  In such examination, the Veteran stated that due to his varicocele, the Veteran cannot close his legs nor bend down due to pain.  The Veteran has difficulty sleeping, and pain radiates from his varicocele to his hips.  The examiner noted that the Veteran continuously takes Gabapentin, an anticonvulsant medication, for pain treatment of his left testicular varicocele.

VA treatment records include a January 2019 VA emergency department note where the Veteran was seen for scrotum pain and swelling. The Veteran submitted for a sonogram on his scrotum in January 2019.  The Veteran had a follow up ultrasound in July 2019, noting the varicocele but stating that the Veteran's scrotum had normal blood flow and no suspicious lesion nor inflammatory process.  See August 2019 VA primary care note.  

Upon review of the record and resolving doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted by analogy under Diagnostic Code 7120. The Veteran's left varicocele has been manifested by swelling, difficulty sleeping, difficulty lifting and bending, and pain extending to the leg/hip. 

Though varicocele is now listed in the rating schedule under Diagnostic Code 7543, prior to the amendment's effective date, it was not listed in the rating schedule, and was instead rated by analogy under Diagnostic Code 7523 (atrophy of the testes).  However, given the Veteran's symptomatology extending to his leg/hip, the Board finds it more appropriate to rate the Veteran's left varicocele by analogy under Diagnostic Code 7120 for varicose veins.  Given that the Veteran is only rated for the left varicocele and not the right, a single rating of 10 percent is appropriate.

The Board next finds that a rating in excess of 10 percent under Diagnostic Code 7120 is not warranted.  In this regard, although the Veteran has reported swelling in the scrotum, there is no indication that his leg/hip results in persistent edema not relieved by elevation, as is contemplated under DC 7120.  A higher rating is also not warranted under Diagnostic Code 7523 because there is no clinical evidence of atrophy of either testicle.

The Board concludes that any other relevant diagnostic codes pertaining to the kidneys, bladder, and urethra are not for application, as the Veteran did not report, and the medical evidence does not show involvement of the kidney, bladder, or urethra associated with his left varicocele.  See 38 C.F
 10 percent under Diagnostic Code 7120 is not warranted.  In this regard, although the Veteran has reported swelling in the scrotum, there is no indication that his leg/hip results in persistent edema not relieved by elevation, as is contemplated under DC 7120.  A higher rating is also not warranted under Diagnostic Code 7523 because there is no clinical evidence of atrophy of either testicle.

The Board concludes that any other relevant diagnostic codes pertaining to the kidneys, bladder, and urethra are not for application, as the Veteran did not report, and the medical evidence does not show involvement of the kidney, bladder, or urethra associated with his left varicocele.  See 38 C.F.R. § 4.115b.  Additionally, the evidence does not show removal of one or both testes, or that the Veteran has suffered from chronic epididymo-orchitis or benign neoplasms, and therefore, a higher rating under Codes 7524, 7525 or 7529 is not for application.

Continued on Next Page

The Board further finds that, SMC(k) is also warranted because there is lay and medical evidence indicating that the Veteran has suffered loss of use of a creative organ (i.e., erectile dysfunction).  See e.g., July 2017 VA treatment record (medication list). 

 

Romina A. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Berryhill, Michael A.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.