10-20 558
10-20 558
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served Feb 1975–Jun 1976; underwent an in‑service right orchiectomy for an undescended testicle and was granted service connection in Dec 2009 (noncompensable under DC 7524).
- Veteran consistently reported persistent right‑sided groin pain and functional difficulty (walking, climbing, sitting) across VA exams (2009, 2013, 2015) and at a 2010 hearing.
- Left testicle remained present and exam evidence shows no penile deformity, no voiding dysfunction, no urinary infections, and no medical nexus tying right lower‑extremity neuropathy to the orchiectomy.
- RO and Board developed the record with VA exams and medical records; one 2015 exam was limited by the Veteran’s partial noncooperation.
- Schedular ratings under genitourinary DCs did not contemplate the Veteran’s predominant symptom (groin pain); Board found schedular criteria inadequate and considered extra‑schedular relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a compensable initial schedular rating is warranted for the service‑connected right orchiectomy | Veteran argued groin pain and functional limitations merit a compensable rating | VA/RO relied on DC 7524 and related genitourinary DCs; record shows removal of one testis with no genitourinary dysfunction so schedular criteria not met | Denied on a schedular basis (no compensable rating under DC 7524 or other genitourinary DCs) |
| Whether an extra‑schedular rating is warranted for symptoms not contemplated by the schedule | Veteran maintained his groin pain and functional loss are not captured by schedular DCs and warrant extra‑schedular compensation | Director of Compensation Service advised denial (no unemployability; relied on exam findings); AOJ argued schedular evaluation adequate | Granted extra‑schedular 10% rating for right groin pain and associated functional limitations (throughout appellate period) |
| Proper analogizing diagnostic code for extra‑schedular rating level | Veteran sought a compensable approximating code reflecting groin pain/functional impact | VA argued genitourinary DCs inappropriate; analogous peripheral nerve code (ilioinguinal nerve, DC 8530) fits symptomatology | Board awarded extra‑schedular rating analogous to DC 8530 (10%) as most closely approximating symptoms |
| Whether TDIU is raised by the record | Veteran had stopped working, but reasons inconsistent and listed SSA disabilities are non‑service‑connected | VA contended TDIU not raised | Board: TDIU not reasonably raised; no adjudication of TDIU granted |
Key Cases Cited
- Quartuccio v. Principi, 16 Vet. App. 183 (2002) (VCAA notice requirements explained)
- Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice under § 5103(a) must include notice of rating and effective date)
- Pelegrini v. Principi, 18 Vet. App. 112 (2004) (timing of VCAA notice requirement)
- Stefl v. Nicholson, 21 Vet. App. 120 (2007) (adequacy of VA examinations)
- Bryant v. Shinseki, 23 Vet. App. 488 (2010) (hearing officer duties under 38 C.F.R. § 3.103(c)(2))
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (consideration of other diagnostic codes when schedular evaluation may be inadequate)
- Thun v. Peake, 22 Vet. App. 111 (2008) (three‑step test for extra‑schedular referral)
- Wages v. McDonald, 27 Vet. App. 233 (2015) (Board’s de novo review of Director of Compensation Service decisions on extra‑schedular ratings)