Citation Nr: 1108167 Decision Date: 03/01/11 Archive Date: 03/09/11 DOCKET NO. 06-09 273 ) DATE ) MERGED APPEAL ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a compensable disability rating for kidney stones with microscopic hematuria. 2. Entitlement to service connection for depression, claimed as secondary to service-connected kidney stones. 3. Entitlement to service connection for glaucoma, claimed as secondary to a left eye injury. 4. Entitlement to service connection for hypertension, claimed as secondary to kidney stones. 5. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1978. The appeal for a compensable disability rating for kidney stones comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 RO decision. The veteran provided sworn testimony pertaining to this matter during an April 2007 hearing before the undersigned Veterans Law Judge. The Board issued a decision denying the benefit sought, and eight other claims, in September 2007. The Veteran then perfected an appeal to the United States Court of Appeals for Veterans Claims (Court). In a July 2009 memorandum, the Court affirmed the eight other denials, then vacated and remanded the denial as to a compensable disability rating for kidney stones. The Board then remanded the matter to the RO in May 2010 for further procedural and evidentiary development. Such development having been completed, the issue has been returned to the Board for further appellate review. The other four issues reflected on the title page arise from a February 2009 RO decision. The Veteran declined a hearing before the Board as to these claims. The two appeals have been merged for purposes of administrative economy and efficiency. The RO additionally certified an appeal involving the Veteran's application to reopen a claim for entitlement to service connection for bilateral foot disabilities. However, upon review, we find that the Board does not have jurisdiction over this matter at this time. Entitlement to service connection for bilateral foot disabilities was one of the appeals denied by the Board in the September 2007 decision, and the denial was affirmed by the Court in July 2009. However, concurrently with this process, the Veteran re-filed the same claim with the RO in 2007. The RO adjudicated it, treating the matter as though it had become final, and denied it in February 2009. The Veteran and his attorney then filed an appeal to the Board in August 2009, two full months before the Court's Mandate took effect in October 2009. Given this scenario, the Board holds that this appeal is invalid as we do not have jurisdiction to review this matter, as the RO improperly reviewed a matter that was in an active appeal status, under review by the Court, and had not yet become final. 38 U.S.C.A. § 7104. We will therefore address it no further. The Veteran and his attorney are advised that they may file another application to reopen the now-final denial at any time, if they wish. FINDINGS OF FACT 1. The veteran does not have recurrent kidney stone formation requiring diet therapy, drug therapy, or invasive or non-invasive procedures; he also does not have occasional attacks of colic, infections, or require a catheter for drainage. 2. The evidence does not include a current medical diagnosis of depression. 3. No relationship is shown between glaucoma and the Veteran's period of service or to any service-connected disability. 4. No relationship is shown between hypertension and the Veteran's period of service or to any service-connected disability; hypertension was not initially diagnosed within a year of the Veteran's discharge from service. 5. The Veteran has been awarded service connection for lipomas, rated as 30 percent disabling; and kidney stones with microscopic hematuria, rated as 0 percent disabling. The combined disability rating is 30 percent. 6. The Veteran is a high school graduate. 7. The Veteran's employment background is in line production work. He has not worked since 2006. 8. The medical evidence shows the Veteran is unemployable due primarily to his nonservice-connected eye disorders. 9. The Veteran's service-connected disabilities alone do not render him unable to obtain or retain employment. CONCLUSIONS OF LAW 1. A compensable disability rating for kidney stones with microscopic hematuria is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.115b, Diagnostic Codes 7508, 7509 (2010). 2. Absent evidence of a current disability, there is no valid claim for entitlement to service connection for depression. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). 3. Service connection is not warranted for glaucoma as directly related to service, or as proximately caused by a service-connected disability. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). 4. Service connection is not warranted for hypertension as directly or presumptively related to service, or as proximately caused by a service-connected disability. 38 U.S.C.A. § 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010). 5. A total disability rating based upon individual unemployability due to service connected disabilities is not warranted. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was provided with this information in letters issued in December 2007 and February 2008. VA medical records, VA examination reports, and Social Security records have been obtained and reviewed in support of the Veteran's claims. The Veteran and his attorney have presented written statements in support of his claims. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matter decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A compensable disability rating for kidney stones with microscopic hematuria The Court's concern in remanding this matter was in part related to the question of whether findings of microscopic hematuria in 2003 and 2004 were properly viewed as part of his claim for an increased disability rating for service-connected kidney stones, or whether the microscopic hematuria should more properly be viewed as a separate claim altogether. Neither the Veteran nor his representative have filed any argument or statement addressing this matter following the July 2009 Court memorandum decision. Upon remand, the RO clarified that regardless of whether the Veteran's kidney stones caused his microscopic hematuria, because service connection was in effect for a "history of kidney stones with microscopic hematuria," the Veteran would be compensated for any compensable impairment related to his microscopic hematuria in any case. In other words, although it would appear the Court practically invited the RO to sever service connection for any portion of his hematuria which was not caused by kidney stones, the RO declined to do so, and reiterated the treatment of the hematuria and kidney stones as part and parcel of the same overall disability. Review of the history of the disability reveals that service connection for a history of kidney stones with claimed blood in the urine was granted in a June 1979 decision. Service connection for any disability which has been in force for ten or more years shall not be severed, except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. 38 U.S.C.A. § 1159; 38 C.F.R. § 3.957. Although the characterization of the disability is unclear and has remained unclear throughout, it does appear that service connection for kidney stones with possible hematuria has been in effect for more than ten years. There is no indication whatsoever of fraud in the original grant, or of any challenge to the Veteran's service or character of discharge. Thus, the Board finds that the posture of the grant has been sufficiently clarified, and we hold that the grant of service connection for kidney stones includes the symptomatology of any accompanying hematuria. We further hold that the grant, as defined, is protected from severance, as it has been in effect for more than ten years, with no indication of fraud. Turning to the question of whether a compensable disability rating is warranted, we hold that the preponderance of the evidence is against a compensable disability rating for the following reasons. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If a veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Even though one disability may potentially be evaluated utilizing several different provisions of the rating schedule, governing regulation provides that that evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Because this appeal has been ongoing for a lengthy period of time, and because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In reaching this conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C.A. § 5110; Hart v. Mansfield, 21 Vet. App. 505 (2007). VA treatment records dated in February 2004 include a history of microscopic hematuria. An abdominal X-ray revealed a non-obstructed bowel gas pattern with no abnormal calcifications. An intravenous pyelogram was performed which showed renal size, cortical thickness and outline to be normal. The pelvocaliceal systems and ureters were normal and mild elevation of the bladder floor was consistent with prostatic enlargement. The bladder was otherwise considered within normal limits. VA examination reports dated in April and November 2004 reflect the above findings. The impression was history of renal calculi in the past, with current microscopic hematuria and phimosis. There was no evidence of current renal calculi in the kidneys, ureter or bladder, based on the intravenous pyelogram noted above. X-rays in April 2004 were normal. The November 2004 examiner felt that the Veteran was suffering from flank pain of unknown etiology. A computed tomography scan in 2005 was negative for nephrolithiasis or hydronephrosis. During a December 2008 VA examination, the Veteran reported having no recurrence of kidney stones since 1977. However, in subsequent correspondence before the Court, the Veteran's attorney asserted that he was experiencing problems with kidney stones approximately twelve times a year. VA treatment records from 2004 to 2010 contain no reports of kidney stones or of complaints or treatment related to kidney stones. There is no indication of hematuria either. During a December 2010 VA examination, the Veteran reported that he had passed many kidney stones during the past thirty years, but had never had surgery of any kind. He stated he was not experiencing any voiding problems, hematuria, or dysuria. The Veteran's current noncompensable evaluation was assigned under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7508. Under Diagnostic Code 7508, the rater is instructed to rate nephrolithiasis as hydronephrosis, Diagnostic Code 7509, unless there is recurrent stone formation requiring one or more of the following: diet therapy, drug therapy, or invasive or non-invasive procedures more than twice a year. Under Diagnostic Code 7509, a 10 percent evaluation is warranted when there is only an occasional attack of colic, there is no infection and catheter drainage is not required. Frequent attacks of colic requiring catheter drainage are rated as 20 percent disabling. Frequent attacks of colic with infection (pyonephrosis), and impaired kidney function are rated as 30 percent disabling. Symptoms of greater severity are to be rated on the basis of resulting renal dysfunction, the criteria for which are provided in 38 C.F.R. § 4.115a. 38 C.F.R. § 4.115b, Diagnostic Code 7509. In applying the governing criteria to the Veteran's situation, we note that despite the Veteran's contention that he has problems with kidney stones approximately twelve times a year, there is no documentation or corroboration of such problems. He does not contend and there is no indication that he requires diet therapy, drug therapy, or any type of treatment procedure to address kidney stones. He does not have colic or infections related to kidney stones, and he does not require a catheter for drainage. Thus, he does not meet any of the criteria for the assignment of a compensable disability rating for kidney stones with microhematuria. 38 C.F.R. § 4.115b, Diagnostic Codes 7508, 7509. The preponderance of the evidence is against the claim and a compensable disability rating must be denied. Service connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. When a chronic disease such as hypertension becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Service connection for depression The Veteran contends that he suffers from depression related to his kidney stones. Review of the Veteran's voluminous VA treatment records contained in his claims file reveals no complaints or treatment for depression, and indeed, no medical diagnosis of depression. Similarly, medical records from the Social Security Administration reflect no complaints, treatment, or diagnosis indicative of depression or any mental health issues. The only mention of depression is contained in the report of the December 2010 genitourinary VA examination. According to this report, the Veteran complained of being depressed, although he was not seeking treatment or taking medication for his symptoms. The examiner urged him to seek medical care, but did not render a diagnosis of depression. A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The Court has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition to disease or injury in service, service connection requires competent medical evidence of a current related disability. Degmetich v. Brown, 104 F.23d 1328 (1997). Although we recognize the Veteran's contention that he suffers from depression, we cannot accord his contention significant probative value for purposes of establishing service connection. Generally, lay persons ostensibly untrained in medicine can provide personal accounts of symptomatology, but cannot provide evidence constituting a medical conclusion, such as a diagnosis, an opinion as to the medical characteristics of symptoms or the etiology of a disease. For the most part, medical testimony must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. As a lay person, the Veteran is not competent to opine as to a diagnosis, medical etiology, or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As the records stands, there is no evidence of a current disability involving depression, or of any relationship between depression and the Veteran's service or any service-connected disability. As such, the Veteran has not filed a valid claim for service connection for depression, and the appeal must be denied. Service connection for glaucoma The Veteran contends that his glaucoma is secondary to the residuals of an injury to his left eye, which he asserts he sustained during service. The Veteran initially claimed service connection for residuals of an eye injury, sustained during service in 1991. Service medical records reflect that he accidently poked himself in the eye with his own gun in 1978; however, no residual disability was shown. The RO denied the claim in 1991 and again in 1994. Glaucoma was initially diagnosed in 1995, more than fifteen years after service. The Board reviewed an appeal as to this decision and in a 1998 decision, held that the Veteran had not submitted new and material evidence adequate to reopen the previously-denied claim. The Veteran made repeated attempts to reopen the previously-denied claim. The RO declined to reopen the claim in 2001, 2004, and 2005. The Board then denied the claim in September 2007. As noted above, the Court affirmed the Board's denial in July 2009. Thus, it is well-established that service connection for residuals of an eye injury has been denied, and that the Veteran has been unsuccessful in numerous attempts to reopen the claim. As service connection is not in effect for residuals of an eye injury in service, by definition a claim for secondary service connection must fail. 38 C.F.R. § 3.310. We observe, however, that because glaucoma was not initially manifest until many years after service, service connection on a direct basis is not warranted. No other viable connection between glaucoma and service has been suggested and the evidence does not indicate any other potential connection to service. The preponderance of the evidence is against the claim and the appeal must be denied. Service connection for hypertension The Veteran contends that hypertension is proximately caused by his service-connected kidney stones with microhematuria. The VA obtained a medical opinion as to this claim in December 2008. After performing a clinical examination of the Veteran and a review of his medical records, the VA examiner noted that the Veteran's blood pressure was well-controlled by medication. The examiner then opined that the Veteran's hypertension was less likely than not to be secondary to the kidney stones. The Veteran has not presented any contrary medical evidence; but rather maintains his assertion that his hypertension is related to his kidney stones. As above, however, we cannot accord his contention significant probative value for purposes of establishing service connection. As a lay person, he cannot provide evidence constituting a medical conclusion, such the etiology of his hypertension. Barr, Grover, Espiritu. Because hypertension was not initially manifest until many years after service, service connection on a direct basis is not warranted, and may not be presumed to be related to service. No other viable connection between hypertension and service has been suggested and the evidence does not indicate any other potential connection to service. The preponderance of the evidence is against the claim and the appeal must be denied. A total disability rating based upon individual unemployability due to service connected disabilities Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. Alternatively, a total disability rating for compensation based on unemployability may be assigned to a veteran who is unable to secure and follow a substantially gainful occupation by reason of his/her service-connected disabilities. The veteran's employment history, educational and vocational attainment, as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether the veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose, ibid. The Veteran has been awarded service connection for lipomas, rated as 30 percent disabling; and kidney stones with microscopic hematuria, rated as 0 percent disabling. The combined disability rating is 30 percent. As such, he does not meet the schedular criteria for a total disability rating based upon unemployability. However, a total disability rating for compensation based on unemployability may be assigned upon a showing that the veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Records from the Social Security Administration indicate that the Veteran is a high school graduate. He has been deemed unemployable by that organization since 2006 and has been receiving Social Security disability benefits since that time. His employment background is in line production and factory work. He has not worked since 2006, however. The medical evidence shows the Veteran is unemployable due primarily to his nonservice-connected eye disorders. The Veteran's treating optometrist rendered an opinion in August 2006 in which he explained that the Veteran has limited ability to detect objects in his inferior field of vision. This condition is nontreatable and possibly progressive due to his glaucoma. As a result, the optometrist opined that the Veteran was not capable of fully completing his prior job duties in a safe and acceptable manner. Thus, the evidence does not support the Veteran's claim that he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. There is no indication in the medical evidence of record that his kidney stones impact upon his employability in any way. There is some evidence that the Veteran's lipomas are uncomfortable when he wears a belt and when he exercises; however, there is no indication that they impact his ability to maintain employment. The Veteran's actual contentions appear to be that his visual problems which are shown to prevent employment should be service-connected; however, as explained above, service connection for various eye problems has been denied upon multiple occasions. In sum, the evidence does not support the Veteran's claim that he is unable to secure and follow a substantially gainful occupation solely by reason of his service-connected disabilities. The preponderance of the evidence is against the Veteran's claim for a total disability rating based upon individual unemployability due to service connected disabilities. The appeal is denied. ORDER A compensable disability rating for kidney stones with microscopic hematuria is denied. Service connection for depression is denied. Service connection for glaucoma is denied. Service connection for hypertension is denied. A total disability rating based upon individual unemployability due to service connected disabilities is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs