Citation Nr: 0933113	
Decision Date: 09/03/09    Archive Date: 09/14/09

DOCKET NO.  06-27 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Entitlement to an increased (compensable) disability rating 
for recurrent urinary tract infections.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Hinton, Counsel




INTRODUCTION

The Veteran served on active duty from August 1990 to 
September 1997.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a January 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Seattle, Washington, which, in pertinent part, denied the 
benefit sought.  The case was later transferred to the RO in 
Pittsburgh, Pennsylvania.


FINDING OF FACT

Disability due to the veteran's recurrent urinary tract 
infections is not manifested by long-term drug therapy, one 
to two hospitalizations per year, and/or requiring 
intermittent intensive management.


CONCLUSION OF LAW

The criteria for a compensable evaluation for recurrent 
urinary tract infections have not been met.  38 U.S.C.A. §§ 
1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 
3.321(b), 4.1- 4.14, 4.115, Diagnostic Code 7501 (2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matters

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 
C.F.R. § 3.159, amended VA's duties to notify and assist a 
claimant in developing the information and evidence necessary 
to substantiate a claim.  Under 38 U.S.C.A. § 5103, VA must 
notify the claimant of any information or evidence not of 
record that is necessary to substantiate the claim, as well 
as what parts of that information or evidence VA will seek to 
provide, and what parts VA expects the claimant to provide.  
38 C.F.R. § 3.159(b) (2008).  

VA must provide such notice to a claimant prior to an initial 
unfavorable decision on a claim for VA benefits by the agency 
of original jurisdiction (AOJ), even if the adjudication 
occurred prior to the enactment of the VCAA.  See Pelegrini 
v. Principi, 18 Vet. App. 112, 119-120 (2004).  VCAA 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) apply to all elements of a claim for service 
connection, so that VA must provide notice that a disability 
rating and an effective date will be assigned if service 
connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 
F.3d 1311 (2007).  

Though notification to the veteran may not have met all of 
the requirements of the VCAA and related case law, including 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the matters 
decided below may be addressed at this time, without further 
remand, because no errors in notice are prejudicial, and the 
veteran has been provided all information needed for a 
reasonable person to prove these claims.  

VA notified the veteran of the information and evidence 
needed to substantiate and complete a claim by way of letters 
dated in June 2004, September 2008, and February 2009, as 
well as in the June 2006 statement of the case and October 
2008 supplemental statement of the case.  These documents 
provided notice of what part of that evidence is to be 
provided by the claimant, and notice of what part VA will 
attempt to obtain.  

The RO informed the veteran of the specific rating criteria 
which would provide a basis for an increased rating for the 
service-connected disorder on appeal.  The RO has provided 
adequate notice of how effective dates are assigned. The 
claim was subsequently readjudicated most recently in the 
October 2008 supplemental statement of the case.  To the 
extent the appellant did not receive full notice prior to the 
initial decision, after pertinent notice was provided, the 
claimant was afforded a meaningful opportunity to participate 
in the adjudication of the claim on appeal.  

The claimant was provided the opportunity to present 
pertinent evidence.  The record contains detailed records of 
medical treatment received and the reports of pertinent 
examinations.  In sum, there is no evidence of any VA error 
in notifying or assisting the appellant that reasonably 
affects the fairness of this adjudication.

VA has fulfilled its duty to assist the claimant by obtaining 
identified and available evidence needed to substantiate the 
claim, and, as warranted by law, by affording VA examinations 
as discussed below.  There is no indication that any 
additional evidence remains outstanding.

II.  Analysis

Disability evaluations are determined by comparing present 
symptomatology with the criteria set forth in VA's Schedule 
for Rating Disabilities, which is based on average impairment 
in earning capacity.  See 38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R. Part 4 (2008).  When a question arises as to which of 
two ratings apply under a particular diagnostic code, the 
higher evaluation is assigned if the disability more closely 
approximates the criteria for the higher rating; otherwise, 
the lower rating will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition. Schafrath v. 
Derwinski, 1 Vet. App. 589, 594 (1991).  The Court has held 
that a claimant may experience multiple distinct degrees of 
disability that might result in different levels of 
compensation from the time an increased rating claim was 
filed until a final decision is made.  Hart v. Mansfield, No. 
05-2424 (U.S. Vet. App. Nov. 19, 2007).  Thus the Board will 
consider whether, based on different distinct levels of 
disability, different ratings may be warranted for different 
time periods from the date the claim was filed in May 2004.

The veteran's statements describing the symptoms of her 
service-connected disorder are deemed competent evidence.  
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these 
statements must be considered with the clinical evidence of 
record and in conjunction with the pertinent rating criteria.

Under VA regulations, separate disabilities arising from a 
single disease entity are to be rated separately. See 38 
C.F.R. § 4.25 (2008); see also Esteban v. Brown, 6 Vet. App. 
259, 261(1994).  However, the evaluation of the same 
disability under various diagnoses is to be avoided. See 38 
C.F.R. § 4.14 (2006); Fanning v. Brown, 4 Vet. App. 225 
(1993).
 
In an April 1999 rating decision the RO granted service 
connection for recurrent urinary tract infections, and 
assigned that disability a zero percent rating under 
hyphenated Diagnostic Code 7599-7504.  That rating has been 
in effect since then.  In the January 2005 rating decision, 
which continued the noncompensable rating, the RO changed the 
designated code to Diagnostic Code 7599-7501.  

Diagnostic Code 7599 is used to identify genitourinary system 
disabilities that are not specifically listed in the 
schedule, but are rated by analogy to similar disabilities 
under the schedule.  See 38 C.F.R. §§ 4.20, 4.27.  Because 
there is no code specifically for urinary tract infection, 
the RO rated this disability under other diagnostic codes 
(7501 (kidney abscess) and 7504 (chronic pyelonephritis)), 
which included evaluation on the basis of urinary tract 
infection symptoms.  

Diagnostic Code 7501 provides that abscess of the kidney is 
rated as urinary tract infection.  38 C.F.R. § 4.115a.  
Diagnostic Code 7504 provides that chronic pyelonephritis is 
to be evaluated as urinary tract infection or renal 
dysfunction, which ever is predominant. 38 C.F.R. § 4.115b, 
Diagnostic Code 7504.

Urinary tract infection is rated as 10 percent disabling if 
the condition requires long-term drug therapy, one to two 
hospitalizations per year and/or intermittent intensive 
management.  A 30 percent evaluation, the highest provided 
under this provision, is assigned for recurrent symptomatic 
infection requiring drainage/frequent hospitalization 
(greater than two times/year), and/or requiring continuous 
intensive management. 38 C.F.R. § 4.115a.  If the Schedule 
does not provide a zero percent evaluation for a diagnostic 
code, as with the diagnostic criteria for rating urinary 
tract infection, then a zero percent evaluation shall be 
assigned when the requirements for compensable evaluation are 
not met.  38 C.F.R. § 4.31 (2008).

Review of the competent evidence on file (private and VA 
treatment records) shows that the Veteran was treated a very 
few times in the late 1990s for symptoms diagnosed as urinary 
tract infection.  In December 1998 she was treated for 
complaints of dysuria, hematuria, frequency and urgency.  At 
that time these symptoms were assessed as urinary tract 
infection.

VA treatment records dated since the Veteran filed her claim 
for increase in May 2004, however, generally show no 
treatment for urinary tract infection.  When seen in February 
2005 the Veteran reported complaints of having urinary tract 
infection and a history of urinary tract infections.  The 
treatment provider noted that the Veteran was afebrile.  In 
that record there is a notation of a previous history of 
urinary tract infection.  A September 2005 treatment note 
shows that the Veteran was seeking a refill of vitamins and 
wanted to discuss fertility.  That note also contains a 
notation that the Veteran had a history of urinary tract 
infections. 

The report of a January 2005 VA genitourinary examination 
shows that the Veteran reported having recurrent urinary 
tract infections with onset in the mid-1990s.  She reported 
having about two to three urinary tract infections per year.  
She had not been on prophylactic antibiotics.  There were no 
months in which she had had two urinary tract infections.  
The most recent episode was in December 2004.  She was 
currently asymptomatic.  After examination, the report 
contains an impression of urinary tract infections occurring 
approximately twice a year not requiring any prophylactic 
antibiotics.  

Based on the foregoing, the preponderance of the evidence is 
against the Veteran's claim for an increased disability 
rating for her recurrent urinary tract infections disability.  
None of the competent evidence for review shows that the 
disability more closely approximates the criteria for the 
higher rating.  That is, there is no competent evidence 
showing that the Veteran's disability due to recurrent 
urinary tract infections requires treatment approximating 
long-term drug therapy, one to two hospitalizations per year, 
and/or intermittent intensive management.   

For the foregoing reasons, the Board finds that the 
preponderance of the evidence is against the grant of a 
disability rating in excess of zero percent for recurrent 
urinary tract infections.  38 U.S.C.A. § 5107(b) (West 2002); 
38 C.F.R. § 4.7, 4.21 (2008).



ORDER

Entitlement to a disability rating in excess of zero percent 
for recurrent urinary tract infections, is denied.  

 

____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs