Citation Nr: 0106100 Decision Date: 02/28/01 Archive Date: 03/02/01 DOCKET NO. 00-02 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased schedular rating for residuals of renal calculi, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for residuals of injury to muscle group XIX, residuals of an appendectomy and ventral hernia, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from May 1941 to July 1945. The current claims were received in August 1997. The Department of Veterans Affairs (VA) Regional Office (RO) denied the benefits sought on appeal in January 1998, and the veteran appealed the denials. The RO also denied an increased (compensable) rating for residuals of a hemorrhoidectomy at that time, and notified the veteran of its decision and of his right to appeal it, but the veteran did not appeal that decision. Accordingly, the Board of Veterans' Appeals (Board) has no jurisdiction over that matter. 38 U.S.C.A. §§ 7104, 7015 (West 1991). The veteran requested and then in March 2000 failed to appear for a hearing before a member of the Board. The issue of entitlement to an increased rating for the veteran's ventral hernia disability is the subject of a remand section of this decision. FINDINGS OF FACT 1. The medical evidence indicates that there are no currently-shown residuals of renal calculi and that the disability is asymptomatic at this time. 2. A 10 percent schedular disability rating for residuals of renal calculi has been in effect for more than 20 years. CONCLUSIONS OF LAW 1. The criteria for a schedular disability rating in excess of 10 percent for residuals of renal calculi have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.115b, Diagnostic Codes 7508, 7509 (2000). 2. The currently-assigned 10 percent schedular disability rating for residuals of renal calculi is preserved from reduction. 38 U.S.C.A. §§ 110, 1155 (West 1991); 38 C.F.R. § 3.951 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to an increased rating for residuals of renal calculi. Preliminarily, the Board notes that while the scope of the VA's duty to assist has been broadened during the course of this claim, the record is compliant with the requirements of the new law, and all evidence necessary to render a fair and impartial determination with respect to this claim is of record. Accordingly, the appeal as to this matter may be decided without further development. Factual background The veteran contends that an increased rating is warranted for the disability at issue because he meets the rating criteria for an increased rating. Namely, he takes Pyridium(r) and self-catheterizes regularly to assist drainage and to avoid urinary infections. Service medical records reveal that the veteran complained of pain in his back and passing blood in his urine in December 1944. Genitourinary studies revealed a small calculus in each kidney pelvis. A cystoscopy and pyelogram in December 1944 showed the ureteral orifices to be normal, and no bladder abnormalities were reported. Service medical records further show that the veteran had attacks of costovertebral angle pain about once a week beginning in late March 1945, and that he passed a small calculus from the left ureter in June 1945. The veteran was discharged from the service because it was felt that there would be a recurrence of stones which would require repeated hospitalizations. On private evaluation in September 1947, the impressions were "good functioning upper urinary tract," and bilateral renal calculi. On VA genitourinary examination in September 1947, the veteran denied urinary symptoms, including blood in his urine, since discharge from the service. On VA genitourinary examination in September 1949, the veteran reported that he had passed a small calculus in March 1949, preceded by typical ureteral colic on the left. Since then, the veteran had experienced no pain and had had no other urinary symptoms such as frequency, dysuria, or hematuria. Clinically, he had no costovertebral angle tenderness on the left and slight tenderness on the right. The diagnoses were renal calculus not found on the left, and symptomatic right renal calculus. A 10 percent rating has been in effect for residuals of renal calculi since December 1949. See the RO's October 1949 rating decision. A June 1968 private medical record states that the veteran had last passed renal stones in 1947. An intravenous pyelogram in June 1968 showed a calculus in the right kidney. Private right pyelolithotomy and right nephropexy were performed in July 1968. VA X-rays of the veteran's kidneys, ureters, and bladder showed no definite urinary calculi in February 1982. On private medical evaluation in September 1982, the veteran stated that he had last had renal stones in 1968. In August 1983, the Board denied service connection for bladder dysfunction. On private medical evaluation in January 1984, the veteran reported that he had last spontaneously passed a kidney stone two years beforehand. A February 1984 private operation report indicates that the veteran had bladder cancer removed at that time. An August 1989 private medical record indicates that the veteran was having urinary retention due to benign prostatic hypertrophy, and that a transurethral resection of the prostate was accomplished to relieve it at that time. Private medical records dating from 1995 to 1996 are contained in the claims folder, showing treatment for, among other things, transient urinary retention. A January 1996 private medical record indicates that the veteran had had an episode in November 1994 of ascites, generalized edema, and acute renal insufficiency, which was blamed on a ruptured bladder which had spontaneously repaired. In January 1995, he had had an acute renal insufficiency which was believed to have been due to Advil(r). The veteran had currently presented to the emergency room because of urinary retention which had not been relieved by self catheterization. A Foley catheter was placed and then subsequently removed by the treating private physician, who felt that the veteran had had an episode of bladder obstruction without significant outlet obstruction. The impression was recurrent episodes of acute renal failure probably due to non-steroidal anti-inflammatory drugs and bladder trauma. On VA examination in September 1997, the veteran reported a history of dysuria and hematuria with acute onset in 1968, as well as a history of bladder cancer and prostatitis, with a transurethral resection of the prostate for the latter. The veteran reported that he would perform self catheterizations intermittently when he would have decreased micturition. The veteran indicated that he was taking Pyridium(r) and he denied a recurrence of renal calculi. He was unable to recall abdominal X-rays or intravenous pyelograms at any recent time. Clinically, the veteran had no abdominal guarding or discomfort when lying supine, and he had no rebound or referred pain. There were no renal artery bruits or abdominal pulsations. There was no costovertebral angle tenderness with blunt percussion. An upper gastrointestinal series with kidney urinary bladder visualization was performed, with no evidence of renalith. The examining physician then concluded that there was insufficient evidence at present to warrant the diagnosis of recurrent renal calculi, or of residuals thereof. A November 1998 letter from the veteran's private physician states that the veteran had been under his care for problems including chronic urinary retention requiring intermittent self-catheterizations complicated by recurring urinary tract infections and a couple of episodes of acute renal failure. He also had a history of bladder cancer. He was avoiding recurring urinary tract infections by daily intermittent self catheterizations. On VA examination in July 1999, the veteran stated that he had had kidney stones in 1945, so he was medically surveyed out of the service. He stated that he was passing blood back then until he passed a stone which was the size of a match head, in 1949. He had had a lot of kidney trouble since then, with infections. It would hurt across the flanks in his back, on both sides. He would also get pain if he stood too long or would ride in a car for a long time. Two years before this July 1999 VA examination, he had to catheterize himself daily. Before that, for about four or five years, he could not empty his bladder fully, and he would get infections. He had had no further bleeding or pains of renal colic. He had been told that the cause of his problem with his bladder was that it was enlarged and had lost its elasticity and could not contract. This would cause urinary tract infections, the last of which was about a year before this examination. He would take Pyridium(r) tablets when necessary for burning after catheterization, about every other day. He would get a slight fever with bladder infections, which he would have almost all the time. He had had a transurethral resection of the prostate in the late 1980's. After that, he did not have all the burning. He had had bladder cancer 12 years before the examination, he reported, and it had been cured with treatment. His kidneys had shut down on him twice in the past four years also. He would fill up with water from his waist up to his face, and then they would have to remove it with a catheter. Clinically, the veteran was in no acute distress and his bladder was not percussible. He had no costovertebral angle tenderness. X-rays of the abdomen, including the kidneys, ureters, and bladder, revealed no calcifications over the urinary tract, and the radiographic impression was no evidence of renal stones. The examining physician's impressions were history of renal calculi which had been spontaneously passed; benign prostatic hypertrophy, status post transurethral resection of the prostate; and bladder cancer, status post surgery and chemotherapy. The physician opined that the veteran's present symptoms did not arise from the veteran's renal calculi but from his bladder and prostate problems. Analysis Schedular disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. Renal calculi, also known as nephrolithiasis, are rated under Diagnostic Code 7508, which indicates that they should be rated as hydronephrosis, except for when there are recurrent stone formations requiring diet therapy, drug therapy, and/or invasive or non-invasive procedures more than two times per year, in which case a 30 percent rating would be warranted. The evidence does not show current renal calculi or that they require the veteran to be on diet therapy or drug therapy or that he has had procedures to alleviate them over the current rating period. Instead, the evidence shows that the veteran takes Pyridium(r) to relieve burning after he catheterizes due to prostate and bladder problems. It shows no renal calculi during the rating period. The Diagnostic Code for hydronephrosis, Diagnostic Code 7509, indicates that when hydronephrosis is severe, it is to be rated as renal dysfunction. When there are frequent attacks of colic with infection (pyonephrosis), and kidney function is impaired, a 30 percent rating is warranted. When there are frequent attacks of colic, requiring catheter drainage, a 20 percent is warranted. When there is only an occasional attack of colic, and there is no infection and no need for catheter drainage, a 10 percent rating is warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7509 (2000). The evidence in this case shows that the veteran is rated as 10 percent disabled from residuals of renal calculi and that he has been so rated for more than 20 years. As such, his 10 percent rating is protected, per 38 C.F.R. § 3.951 (2000), which provides that disability compensation ratings which are in effect for 20 years or more will not be reduced unless there is a showing that such rating was based on fraud. There is no showing or suspicion as to fraud here. The evidence also shows that there are no current residual manifestations from the veteran's service-connected renal stone disability. The veteran denied having recent stones at that time of the September 1997 VA examination, he had no costovertebral angle tenderness clinically then, and an upper gastrointestinal series with kidney, ureter, and bladder visualization was negative for renalith. The examiner indicated that the evidence did not warrant a diagnosis of renal calculi or residuals thereof. Likewise, on VA examination in July 1999, the veteran denied recent bleeding and renal colic, X-rays revealed no evidence of renal stones, and while the veteran stated that he would have flank pain, the examiner opined that the veteran's present symptoms did not arise from renal calculi, but from bladder and prostate problems. While the evidence shows that the veteran has current urinary disability, as reflected by his symptoms of urinary retention and burning after catheterization, and that he takes Pyridium(r), the evidence, including the medical opinion rendered at the time of the VA examination in July 1999, also shows that his current problems are due to bladder and prostate problems and from renal failure from taking non- steroidal anti-inflammatory drugs rather than from residuals of renal stones. The evidence indicates that there are no current residuals of renal calculi. As discussed above, evaluating non-service-connected impairment and symptomatology under a rating for a service-connected disability is prohibited. Service connection is not in effect for bladder or prostate problems or for renal failure from non-steroidal anti-inflammatory drugs, and as such, payment of compensation for them under the guise of compensating residuals of renal stones is prohibited. 38 C.F.R. § 4.14. The representative has requested application of the benefit of the doubt doctrine. The doctrine is not for application in this case, however, as the evidence is not so evently balanced for and against the veteran's claim as to warrant such consideration. The Board notes that in the November 1999 Statement of the Case, the RO provided the veteran the provisions of 38 C.F.R. § 3.321(b)(1) (2000), which pertain to extraschedular ratings. However, it did not consider those provisions at that time, nor has it considered them at any other time during the course of the veteran's claim. The United States Court of Appeals for Veterans Claims (Court) has held that the question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996); see also VAOGCPREC 6-96 (finding that the Board may deny extraschedular ratings, provided that the RO has fully adjudicated the issues and followed appropriate appellate procedure). Bagwell left intact, however, a prior Court holding in Floyd v. Brown, 9 Vet. App. 88, 95 (1996), which found that when an extraschedular grant may be in order, that issue must be referred to those "officials who possess the delegated authority to assign such a rating in the first instance," pursuant to 38 C.F.R. § 3.321. In this case, while the RO issued the veteran a statement of the case in November 1999 containing the provisions of 38 C.F.R. § 3.321(b)(1), it has not specifically considered whether referral for an extraschedular evaluation may be in order. Consequently, the Board refers this matter to the RO for initial consideration. ORDER A schedular disability rating in excess of 10 percent for residuals of renal calculi is denied. REMAND Entitlement to an increased rating for residuals of injury to muscle group XIX, residuals of an appendectomy and ventral hernia. The veteran contends that he is more than 20 percent disabled due to his service-connected ventral hernia disability. Service medical records show that he underwent surgical repair of a small, incomplete mid rectus ventral hernia in November 1944. A January 1945 recapitulation of treatment indicates that the veteran had had a ruptured appendix before service which was operated upon at a private hospital in February 1940, and that the veteran had had an appendectomy through a McBurney incision at a service hospital in February 1942 after another attack of appendicitis. The veteran has a history of post-service abdominal operations of record, to include, in February 1992, a right inguinal hernia repair with Marlex mesh reinforcement by a private physician. The veteran's service-connected ventral hernia disability was previously rated as 10 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5319 until the time of an August 1994 RO rating decision. At that time, it was rated as 20 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7339. The next higher rating under Diagnostic Code 5319 is a 30 percent rating, for moderately severe injury to muscle group XIX. The next higher rating under Diagnostic Code 7339 is a 40 percent rating, for a large postoperative ventral hernia which is not well supported by a belt under ordinary conditions. After reviewing the provisions of 38 C.F.R. § 4.56 (2000) and the evidence of record, the Board concludes that there is not enough clinical information of record to determine whether or not the veteran meets the criteria for a 30 percent rating under Diagnostic Code 5319, and it should be considered under the circumstances. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.. A November 1998 letter from the veteran's private physician indicates that the veteran has limitation of motion of his trunk associated with his multiple abdominal incisions and scar tissue, and that because of this, the veteran has difficulty picking things up off of the floor and a similar difficulty in carrying them. The provisions of Diagnostic Code 5319 indicate that muscle group XIX is made up of the rectus abdominis, external oblique, internal oblique, transversalis, and the quadratus lumborum muscles, and that the muscles function in support and compression of the abdominal wall and lower thorax, flex and laterally move the spine, and are synergists in strong downward movements of the arm. The current extent of disability that the veteran has to these muscles is not sufficiently explained in medical records. All that is known is that the veteran has "difficulty" in performing certain tasks. Other indicia to consider insofar as the question of whether the veteran's muscle group XIX disability more nearly approximates moderate, as opposed to moderately severe, disability to muscle group XIX, must be further developed in order to assist the veteran with his claim. See 38 C.F.R. § 4.56 (2000), which specifies how to differentiate between moderate and moderately severe muscle disability. In light of the above, the Board believes that the medical record on appeal is inadequate to evaluate the veteran's claim in a fair and informed manner. The Board must ensure that it obtains a complete picture of a claimant's disorder in order to fulfill that responsibility. See Littke v. Derwinski, 1 Vet. App. 90 (1990); Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. See Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and ascertain if he has received any VA, private or other treatment for the disability at issue which is not currently of record. The veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO should then obtain these records and associate them with the claims folder. All efforts which are made to obtain such medical records should be documented in the veteran's VA claims folder. 2. A VA surgical examination should be conducted. The examining physician should review the claims folder and the provisions of 38 C.F.R. § 4.56, examine the veteran, and thereafter describe the nature, extent, and severity of the disability to muscle group XIX which is clinically present, in a manner which will enable VA adjudicators to classify the veteran's disability to muscle group XIX appropriately under the rating criteria. Specifically, the examiner must include information as to the existence and/or degree of loss of deep fascia or muscle substance and impairment of muscle tonus in muscle group XIX, and as to whether these are discernable by palpation. Loss of power or lowered threshold of fatigue should also be tested for and reported, and it should be determined whether the veteran has normal firm resistance of his muscles, and the results of that inquiry must be reported. Photographs of the disability should be taken and incorporated into the veteran's claims folder. The report of the examination should be associated with the veteran's VA claims folder. 3. The RO shall take such development or review action as it deems helpful with respect to the claim for an increased rating for the disability at issue, including any and all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475. After any appropriate developmental action has been completed, the RO should readjudicate the veteran's claim. 4. If any of the benefits sought on appeal remain denied, the veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. By this action, the Board intimates no opinion, legal or factual, as to the ultimate dispositions warranted as to these issues. The Board notes that RO compliance with this remand is not discretionary. If the RO fails to comply with the terms of this remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 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. 2000) (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. Heather J. Harter Acting Member, Board of Veterans' Appeals