Citation NR: 9635117 Decision Date: 12/09/96 Archive Date: 12/19/96 DOCKET NO. 94-41 906 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for kidney stones, currently evaluated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from December 1986 to December 1990. Prior service from March 1971 to December 1986 has not been verified. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the June 1991 rating decision, by which service connection was established for kidney stones at a noncompensable rating. By a rating decision, dated in April 1992, the RO increased the disability rating to a 10 percent evaluation. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a higher evaluation for his service-connected kidney stones. He has reported that he experience painless hematuria once a month and has pain associated with colic once or twice a year. He has been treated with a low calcium diet and medication. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). 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 claim for an increased rating for kidney stones. FINDINGS OF FACT 1. The veteran’s kidney condition is manifested by complaints of painless hematuria, recurrent urinary tract infections and attacks of colic once or twice a year; the use of a catheter has not been indicated. 2. Frequent attacks of colic, a diagnosis of pyonephrosis and recurrence of stones requiring treatment with diet, drugs or invasive procedures have not been demonstrated. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for kidney stones have not been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. §§ 3.321, 4.7, 4.115b, Codes 7508, 7509 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, I note that the veteran has presented a well- grounded claim with respect to an increased rating for the service-connected kidney stones. That is, he has presented a claim that is plausible. I am also satisfied that all appropriate development has been accomplished. The recent examinations provide sufficient information to rate the disability in accordance with the applicable rating code. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon a lack of usefulness in self-support. 38 C.F.R. § 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 for the higher rating. 38 C.F.R. § 4.7. In considering the severity of a disability it is essential to trace the medical history of the disability. 38 C.F.R. §§ 4.1, 4.2. In this case, service connection was established for kidney stones in a June 1991 rating decision. A noncompensable percent rating was assigned originally; but, that rating was increased to a 10 percent evaluation from January 1991. The veteran has consistently reported the presence of intermittent hematuria with flank pain that occurred about once a year. He has provided information to the effect that he has blood in his urine about once a month. At the March 1991 VA examination, he reported that he had not passed any stones for about 2 years. At the February 1992 examination, the veteran was noted to have commenced drug therapy with Urocit and HCTZ, which apparently reduced his symptoms. In addition, the veteran reported having intermittent troubles with dysuria, although he rarely experienced “colicky type pain”. He did report, however, that he experienced attacks of colic about one or two times a year. On physical examination, there was not visible evidence of nephrolithiasis; but, it was noted that he did have a urinary tract infection as a sequale or recurrent nephrolithiasis. Normal kidneys were viewed on ultrasound conducted in the previous month. No hydronephrosis or stones or were observed at that time. On subsequent examination, conducted in June 1993, the veteran reported having another episode of painless hematuria and stated that he followed a low calcium diet to control his nephrolithiasis. The physical examination revealed evidence of infection. The veteran was referred for an intravenous pyelogram (IVP), which was normal as reflected on the July 1993 report. The veteran’s service-connected kidney condition is rated under 38 C.F.R. § 4.115, Code 7508 for nephrolithiasis. This condition is rating as hydronephrosis, except for recurrent stone formation requiring diet therapy, drug therapy or invasive or noninvasive procedures more than two times yearly. This is not the veteran’s case, particularly in view of the fact that there has not been any clinical evidence of a recent recurrence of kidney stones. Hydronephrosis is afforded a 10 percent rating for only an occasional attack of colic, not infected and not requiring a catheter. The next higher evaluation of 20 percent requires frequent attacks of colic, requiring catheter drainage. 38 C.F.R. § 4.115b, Code 7509. In the veteran’s case, the veteran admitted having colic no more than once or twice a year. While urinary tract infections have been demonstrated on a few occasions, the veteran has not been required to use a catheter for his condition. Clearly, the veteran does not meet the schedular criteria for the next higher evaluation in terms of frequency and intensity of symptoms. In addition, he has not presented such an exceptional or unusual disability picture that would obviate the use of the normal rating criteria. The need for frequent hospitalization has not been demonstrated. Finally, no marked interference with employment is shown to be the result of the service-connected disability. Consequently there is no basis upon which to grant an extraschedular rating under 38 C.F.R. § 3.321. In view of the foregoing, I conclude that the preponderance of the evidence is against the claim for an increased rating for kidney stones. ORDER An increased rating for kidney stones is denied. SABRINA M. TILLEY Acting Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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. - 2 -