Citation Nr: 0810491 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 02-06 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for bilateral nephrocalcinosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from May 1991 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO) and two Board remands. FINDING OF FACT Since the initial grant of service connection, the veteran's bilateral nephrocalcinosis is manifested by recurrent stone formation requiring drug and diet therapy, but constant albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101 have not been shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for nephrocalcinosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7532-7508, 7509 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all of the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Since the veteran has appealed the initial rating assigned for his nephrocalcinosis, the entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The veteran was assigned a 30 percent evaluation for nephrocalcinosis under Diagnostic Codes 7532-7508, effective July 31, 1999. See 38 C.F.R. § 4.27 (2007) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under Diagnostic Code (DC) 7508, nephrolithiasis is rated as hydronephrosis, pursuant to DC 7509, except for recurrent stone formation requiring one or more of the following: diet therapy; drug therapy; or invasive or non-invasive procedures more than two times a year. The criteria for nephrolithiasis provides for a maximum rating of 30 percent. For a rating in excess of 30 percent, the kidney disability is to be rated as hydronephrosis. 38 C.F.R. § 4.115b, Diagnostic Code 7508. The diagnostic code for hydronephrosis provides that for a rating in excess of 30 percent, the disability is to be rated as renal dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7509. Under Diagnostic Code 7532, renal tubular disorder is rated as 20 percent disabling when symptomatic, or the condition may be rated as renal dysfunction. 38 C.F.R. § 4.115b, DC 7532. Under 38 C.F.R. § 4.115a, renal dysfunction will be rated 30 percent disabling where there is albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A 60 percent rating contemplates constant albuminuria with some edema; or definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. 38 C.F.R. § 4.115a. A 40 percent evaluation for hypertension requires clinical evidence of a diastolic pressure predominantly 120 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). The veteran's service medical records reveal that he was first diagnosed with bilateral nephrocalcinosis during service. On a November 1995 medical history report, the veteran reported that he had sugar or albumin in his urine. The medical history report also noted that the veteran had albumin in his urine when he was inducted into service. In February 1998, an Intravenous Pyelogram (IVP) was performed, which revealed bilateral renal calculi. The diagnosis was bilateral nephrolithiasis. A March 1998 treatment record noted that protein was found in the veteran's urine during an October 1997 routine health examination. A May 1998 urinalysis revealed 100 milligrams (mg) of DL protein. In August 1998, a twenty-four hour urine analysis revealed hypercalcuria and high urinary uric acid excretion. Albumin was at least 240 mg per twenty-four hours, but the veteran maintained creatinine clearance. The diagnosis was nephrocalcinosis. A March 1999 treatment note indicated that the veteran would have to be treated for life with medication for his kidney disorder. In a March 1999 Medical Board Evaluation, the diagnosis of bilateral nephrocalcinosis was confirmed. The report noted that the veteran's blood pressure was 130/92, and also indicated that the veteran had no edema. The veteran's May 1999 separation examination noted recurrent nephrolithiasis. In a Report of Medical History completed at that time, the veteran noted kidney stones, proteinuria, and hematuria. In August 2000, the veteran underwent a VA examination. The veteran reported a history of renal problems, noting that he developed a renal problem after service which manifests itself apparently as non-nephrotic proteinuria. The veteran also complained of intermittent high blood pressure, but stated that he has required no treatment for this. He also noted a history of nephrocalcinosis, for which he takes medication. On physical examination, the veteran's blood pressure was 110/70. The VA examiner diagnosed bilateral nephrocalcinosis. VA treatment records from August 2000 through June 2007 reveal the veteran's complaints of and treatment for bilateral nephrocalcinosis, nephrolithiasis, and renal calculi. In January 2001, the veteran underwent an ultrasound of the kidneys, which revealed probable nephrocalcinosis involving the renal pyramids on the right and the left. A June 2001 IVP showed several small nonobstructing calculi overlying the left kidney with at least one small nonobstructing calculus overlying the right kidney. There was no evidence of obstruction and no post- void residual. Laboratory results from July 2002 revealed an albumin level of 4.6. A November 2004 computed tomography (CT) scan of the abdomen and pelvis revealed numerous nonobstructive nephrolithiasis bilaterally measuring up to 0.5 centimeters (cm) in the interpolar region of the left kidney. No ureteral or urinary bladder calculi were identified. In March 2004, the veteran underwent an ultrasound of the kidneys and bladder, which revealed tiny bright echoes throughout the right kidney that perhaps represented low-density intracaliceal calculi. In December 2004, the veteran reported that he passed a calcium oxylate stone several years before, but was currently asymptomatic. A computed tomography (CT) scan revealed stones in both kidneys but no calcium, no uric acid, and no parathyroid assay. A March 2004 renal and urinary bladder ultrasound revealed probable tiny intracaliceal calculi. A January 2005 treatment note indicated that a CT scan revealed multiple nonobstructing stones, currently with no symptoms. Private medical treatment records from March 2004 to December 2005 also reveal complaints of and treatment for bilateral nephrocalcinosis. March 2004 treatment records revealed multiple bearing size nonobstructive renal calculi within the bilateral kidneys. A November 2002 chemical analysis showed the stones to be made of calcium oxylate. Review of laboratory tests showed essentially normal renal function. The diagnosis was persistent calcium oxylate nephrolithiasis. Treatment included drug therapy and a low-protein diet. In April 2001, the veteran underwent a VA genitourinary examination. On physical examination, the veteran's blood pressure was 112/70, and there was no indication of edema. The diagnosis was bilateral nephrocalcinosis. The VA examiner noted that the veteran was on a maintenance regimen of Allopurinol and hydrochlorothiazide which he tolerated well with no toxicity. The veteran had no loss of renal function related to his renal calculi. In January 2005, the veteran underwent a VA genitourinary examination. The veteran complained of hematuria and foul smelling urine in the past, and noted that he has passed two stones. He also noted occasional back pain in the bilateral flanks. He denied lethargy, weakness, anorexia, weight loss, or weight gain. He reported occasional urinary hesitancy in the morning, but otherwise denied frequency, dysuria, or difficult stream. He denied incontinence and urinary tract surgery. He reported that he has not had to cathertize or perform dilations, and was not on a modified diet therapy. The VA examiner noted that the veteran's most recent stone was sent for analysis, and came back as calcium oxalate monohydrate with a hydroxyl appetite. There was also a protein matrix with the stone. Laboratory findings showed a BUN of 9 and creatinine of 1.1. Urinalysis also showed two white blood cells per high power field, few bacteria, and no hematuria. The veteran reported that he was currently taking medication for his kidney stones. He also stated that, with the exception of pain in the bilateral flanks, he was relatively asymptomatic of his kidney stones. The VA examiner diagnosed bilateral renal stones. Laboratory testing performed later that month was within normal limits with no evidence of kidney disease. A January 2005 VA examination for hypertension revealed the veteran's blood pressure to be 147/82 and 141/85. The diagnosis was hypertension, unrelated to the veteran's nephrocalcinosis. At a June 2005 hearing before the Board, the veteran testified that his symptoms included pain in the ribs, pain on urination, foul smelling urine, and high blood pressure. The veteran also stated that he misses work to attend doctor appointments, and that he regularly has blood in his urine. He urinates three times per night, and has urinary leakage. He testified that he has been to the emergency room to pass kidney stones, but has had no other hospitalizations related to his kidney disorder. In March 2006, the veteran underwent a VA genitourinary examination. The veteran complained of feeling tired and having poor energy. He reported that his appetite was good, and that he had gained more than 20 pounds over the last year. He stated that he urinated approximately twice per night, and approximately once every two hours during the day, depending on fluid intake. He complained of a dark brownish discoloration of the urine if he engages in heavy physical activity. The veteran denied urinary incontinence, urinary tract surgery, urinary tract infections, hospitalization, and urinary cathertization, dilation, or drainage procedures to pass his urine. The veteran reported that he passed his last kidney stone in October 2004, and that he currently takes Allopurinol for his kidney stones. The veteran stated that he is on a low-fat diet and avoids dairy products. He reported that he works full-time in a boiler plant and does not feel that his kidney problems have a meaningful adverse effect on his employment. Physical examination of the abdomen was negative for any mass tenderness or organomegaly. A cardiac examination revealed normal S1 and S2 without murmur, gallop, or rub. The veteran's extremities had no cyanosis, clubbing, or edema. A urinalysis confirmed the presence of blood and protein with one white cell and three red cells noted. There was no sign of active infection. Laboratory tests also showed a BUN of 8, creatinine of .9, and calcium of 9.4, which the VA examiner stated were normal. The veteran's blood pressure was 140/95, 129/90, and 129/87. The VA examiner diagnosed persistent mild hematuria and proteinuria on urinalysis, and noted that these findings were documented near the time of the veteran's enlistment into service and have persisted and will likely continue to persist. The VA examiner stated that the etiology is most likely a congenital renal tubular defect affecting the reabsorption of calcium, phosphorus, and/or magnesium, and that the underlying biochemical abnormality has led to the formation of several kidney stones which can also cause more hematuria and nonspecific proteinuria. The VA examiner concluded that the veteran's kidney disorder does "not appear to be interfering with his employment. His kidney function is still normal, as indicated by a normal BUN and creatinine." In June 2007, the VA examiner who prepared the March 2006 VA examination report prepared an additional opinion which considered additional medical evidence not available at the time of the March 2006 examination. The opinion stated that the veteran has chronic nephrocalcinosis with nephrolithiasis which have been long-standing and will likely continue to persist with probable, but not predictable, recurrences of symptomatology. The additional medical evidence reviewed did not present an unusual disability picture in regard to interference with employment or frequent hospitalizations beyond what would normally be expected for any other individual with this condition. The Board finds that an initial evaluation in excess of 30 percent for the veteran's service-connected bilateral nephrocalcinosis is not warranted. The veteran's kidney disorder has been manifested by recurrent kidney stone formation requiring drug and diet therapy. However, there is no evidence that his kidney disorder causes constant albuminuria with some edema, decreased kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. See 38 C.F.R. § 4.115a. A July 2002 laboratory report indicates that the veteran's albumin level was within normal limits. The results of a January 2001 urinalysis were essentially normal. Testing performed in March 2006 confirmed the presence of blood and protein with no active sign of infection, and BUN and creatinine tests were normal. Although the veteran's medical records reveal that he has been diagnosed with and treated for hypertension, his blood pressure readings have consistently been noncompensable under DC 7101. Outpatient records are negative for findings of albuminuria or decreased kidney function. For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the veteran's claim, and that an increased initial rating for bilateral nephrocalcinosis is not warranted. The Board also notes that, after review of the entire evidence of record, the evidence does not warrant a rating in excess of 30 percent for nephrocalcinosis at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002); see also Hart, 21 Vet. App. 505. The Board has considered whether the veteran is entitled to an extraschedular evaluation for his service-connected bilateral nephrocalcinosis under the provisions of 38 C.F.R. § 3.321(b)(1) (2007). In this case, however, there has been no showing that the veteran's service-connected nephrocalcinosis has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of his disability. In the absence of such factors, the Board finds that the requirements for an extraschedular evaluation for the veteran's service-connected nephrocalcinosis under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). II. Duties to Notify and Assist With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The Board notes that the Court recently issued a decision in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008), regarding the notice required for an increased compensation claim. However, in Vazquez-Flores, the Court distinguished claims for increased compensation of an already service-connected disability from those regarding the initial-disability-rating element of a service connection claim. In addition, the Court has previously held that, when the rating decision that is the basis of the appeal was for service connection for the claimed disability, once a decision awarding service connection, a disability rating and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). In the present case, the veteran's claim was granted, a disability rating and effective date assigned, in a September 2000 decision of the RO. VA's duty to notify under § 5103(a) is discharged. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). As such, a discussion of whether sufficient notice has been provided for an increased compensation claim is not necessary because the Court articulated that the Vazquez- Flores notice requirements apply to a claim for increase and not to an initial rating claim as is the case here. The veteran is also represented by a veteran's service organization that assisted him in preparing his appeal. The veteran has not alleged that VA failed to comply with the notice requirements of the VCAA. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Since service connection was granted, and a rating was assigned effective the date of receipt of the claim, there is no potential service connection or effective date issue that would warrant additional notice. Dingess, 19 Vet. App. at 473. Accordingly, the Board finds that the veteran has been provided adequate notice as required by the VCAA. The veteran's service medical records, VA treatment records, and private medical treatment records have bee obtained. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). The veteran has been afforded four VA examinations. See 38 C.F.R. § 3.159(c)(4). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield, 20 Vet. App. at 542-43; see also Dingess, 19 Vet. App. at 473. Thus, VA has satisfied both the notice and duty to assist provisions of the law. ORDER Entitlement to an initial disability rating in excess of 30 percent for bilateral nephrocalcinosis is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs