Citation Nr: 1120850 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 07-10 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for nephrolithiasis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from June 1980 to June 2000. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. For the entire initial rating period on appeal, the Veteran's nephrolithiasis has been manifested by recurrent stone formation requiring drug therapy. CONCLUSION OF LAW The criteria for a 30 percent initial rating for nephrolithiasis have been met for the entire initial rating period; the criteria for an initial rating higher than 30 percent have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.115b, Diagnostic Code 7508 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010). Concerning the appeal for a higher initial rating, because it is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (CAVC) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's statements. In addition, the Veteran was afforded a VA examination in January 2005. The Board finds this examination to be adequate because it was performed by a medical professional based on solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran with clinical measures conducted. Moreover, the resulting diagnoses and rationales were consistent with the examination and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Board acknowledges that the Veteran's representative has asserted that the examination - conducted in January 2005 - is too old, and does not reflect the Veteran's current condition; however, neither the representative nor the Veteran has identified any specific change or worsening in the Veteran's condition that would render the examination inadequate. The passage of time alone does not render an examination inadequate. On the contrary, as will be discussed in more detail below, the record contains more recent private reports reflective of the level of disability. A review of entirety of the evidence indicates no substantial change during the initial rating period on appeal. The Veteran has recurrent stone formation that has been noted since the 1980s. Moreover, the Veteran is herein awarded the maximum schedular rating for nephrolithiasis, and he has not identified any components of an exceptional disability picture; therefore, the Board finds that further examination is not necessary. Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings (evaluations) which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated (evaluated) on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2010). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When the schedule does not provide a zero percent evaluation for in a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2010). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When a claimant is awarded service connection and assigned an initial rating, separate ratings may be assigned for separate periods of time in accordance with the facts found. Such separate ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The current claim - a claim for service connection - was received on November 8, 2004. Service connection for nephrolithiasis was granted in a February 2005 rating decision, and a zero percent initial rating was assigned under Diagnostic Code 7508, effective March 31, 2004. The Veteran disagreed with that initial disability rating. In a March 2007 decision during the appeal, a higher, 10 percent initial rating was assigned from March 31, 2004. Diagnostic Code 7508 directs that nephrolithiasis should be rated as hydronephrosis, except for recurrent stone formation requiring one or more of the following: (1) diet therapy, (2) drug therapy, or (3) invasive or non-invasive procedures more than two times/year. In that case, a 30 percent rating is warranted. 38 C.F.R. § 4.115b. Hydronephrosis is rated under Diagnostic Code 7509 as follows: Severe; Rate as renal dysfunction. Frequent attacks of colic with infection (pyonephrosis), kidney function impaired warrants a 30 percent rating. Frequent attacks of colic, requiring catheter drainage warrants a 20 percent rating. Only an occasional attack of colic, not infected and not requiring catheter drainage warrants a 10 percent rating. 38 C.F.R. § 4.115b. The Board finds that the Veteran has recurrent stone formation during the entire initial rating appeal. A July 15, 2004 report from the McClellan A.F.B. satellite clinic reveals passage of a stone that morning, and a history of 4-5 stones. The Veteran reported to the VA examiner that he was diagnosed with nephrolithiasis in 1987, and that he subsequently passed stones 4-5 times. An August 2002 treatment report from Methodist Hospital shows a recurrent stone at that time. A July 2004 report from Mercy Hospital also shows recurrence of a stone. In July 2007, the Veteran was treated by a private physician, J.T.H., D.O. for recent passage of two stones. The diagnosis was recurrent nephrolithiasis. In addition, the Board finds that the nephrolithiasis requires drug therapy. A July 2007 report of J.T.H, D.O., reflects that the Veteran was prescribed Microzide 12.5 mg, once per day, to reduce calcium excretion. Accordingly, as there is recurrent stone formation requiring drug therapy, the requirements for a 30 percent rating under Diagnostic Code 7508 are met for the entire initial rating period on appeal. As 30 percent is the maximum rating under Diagnostic Code 7508 (nephrolithiasis) or 7809 (hydronephrosis), there is no schedular rating higher than 30 percent available. 38 C.F.R. § 4.115b. The Board has also considered whether staged ratings are warranted; however, based on the presence throughout the period on appeal of recurrent stone formation, the Board finds that the disability has not significantly changed, and a uniform evaluation is warranted. Although drug therapy was not prescribed prior to July 2007, the Board presumes that such was warranted, given the repeated treatment for stones throughout the initial rating period on appeal. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2010), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected recurrent nephrolithiasis. The rating criteria specifically provide for ratings based on the presence of recurrent stone formation with either diet therapy, drug therapy, or invasive or non-invasive procedures. The fact that no rating higher than 30 percent is included does not indicate any failure to contemplate the Veteran's particular symptomatology. Indeed, the Veteran has not identified any factor of his disability picture that is not addressed by the schedule. His assertions in regard to his claim appear to be focused on the recurrent nature of the attacks. Recurrence is clearly contemplated by the rating schedule. Because the schedular rating criteria are adequate to rate the Veteran's service-connected nephrolithiasis, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER An initial rating of 30 percent, but no higher, for nephrolithiasis, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs