Citation Nr: 1111951 Decision Date: 03/25/11 Archive Date: 04/06/11 DOCKET NO. 07-24 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for nephrolithiasis (kidney stones). ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to June 2001. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2006 rating decision of the VA Regional Office (RO) in Los Angeles, California that granted service connection for nephrolithiasis, rated 10 percent disabling. The appellant appeals for a higher initial rating. FINDING OF FACT Nephrolithiasis is manifested by occasional attacks of renal colic requiring drug therapy and non-invasive procedures. CONCLUSION OF LAW The criteria for an evaluation of 30 percent for nephrolithiasis are met during the appeal period. 38 U.S.C.A. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.1, 4.115b, Diagnostic Code 7508-7509 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran appeals the April 2006 rating decision that granted service connection for nephrolithiasis and assigned an initial 10 percent evaluation. Preliminary Considerations - VA's Duty to Assist the Veteran. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this instance, the Veteran is being assigned the maximum schedular rating for nephrolithiasis/hydronephrosis. No higher rating is warranted for the symptoms the Veteran presents. The Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. § 5103A (a) (2). Therefore, in view of the Board's favorable decision and full grant of this benefit sought on appeal, further assistance is unnecessary to aid the appellant in substantiating the claim. Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities that is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.1 (2010). The Veteran's kidney disability is evaluated as 10 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7508 for nephrolithiasis. Nephrolithiasis is rated as hydronephrosis except that a 30 percent rating is warranted for recurrent stone formation requiring one or more of the following: diet therapy, drug therapy, and invasive or non-invasive procedures more than two times per year. 38 C.F.R. § 4.115b, Diagnostic Code 7508. Hydronephrosis warrants a 10 percent rating for occasional attacks of colic, not infected and not requiring catheter drainage. A 20 percent rating is warranted if there are frequent attacks of colic requiring catheter drainage. A 30 percent rating is assigned for frequent attacks of colic with infection and impaired kidney function. 38 C.F.R. § 4.115b, Diagnostic Code 7809. Factual Background A VA outpatient clinic note dated in September 2003 noted that the Veteran presented for the first time at the clinic with left sided pain radiating to the left flank down to the testicle area. He reported that pain had started three days before in the left side of his back towards the front and the testicle. He said that he had had this type of pain during his tour of duty in Japan and that renal stones had been diagnosed. Following examination, a pertinent impression of nephrolithiasis was rendered. The examiner prescribed Vicodin for pain and instructed that the appellant consume at least greater than 2.5 liters of fluids per day and remain hydrated. A follow-up entry in September 2003 indicated that diagnostic testing revealed kidney stones but no active infection. It was noted that all laboratory studies were normal. Intravenous pyelogram (IVP) was ordered to further evaluate kidney stones. Clinical records dated in September 2004 were received from Western Medical Center of Anaheim showing that the Veteran was admitted with acute onset of left lower quadrant abdominal pain radiating to the flank. He also had hematuria. On examination in the emergency room, it was determined that he had ureteral/renal calculi and that this was his third episode. A pelvic CAT scan revealed two to three millimeter(mm) distal left ureter stones causing mild to modest hydronephrosis. It was noted that there were also at least four one to two mm left renal stones. Urology consultation was obtained and it was felt that manipulation was appropriate to remove the stones but that the Veteran refused. It was noted that the remainder of his stay in the hospital was uneventful. He was discharged on Tylenol with codeine and encouraged to increase his fluid intake. The Veteran was seen on a VA outpatient basis in February 2006 with complaints of right flank back and abdominal pain with no hematuria. He indicated that he had had a one to two week history of such and had passed a stone. He stated that he had blood in his urine at times and wanted definitive treatment. The appellant denied fever. It was noted that he had taken a Vicodin earlier and was without pain at the time. An assessment of nephrolithiasis was recorded and chemical laboratory studies were ordered. The Veteran was afforded a VA compensation examination in February 2006 for kidney stones. Pertinent history was recited to the effect of left flank pain beginning in 2001 and hospitalization for such in 2004. The appellant related that he continued to pass stones and had most recently done so the past Monday. Chemical laboratory studies were performed. Following examination, a diagnosis of recurrent kidney stones, currently without residuals, was rendered. In a statement received in May 2006, the Veteran related that on February 28, 2006, he went to Long Beach VA for kidney stones and was given painkillers. He stated that he had an episode of kidney stones in March and did not go to VA as he still had painkillers left over from the February visit. VA outpatient clinical records dated between 2008 to May 2010 reflect that the Veteran received treatment in September 2008 for left flank pain of two weeks duration. It was reported that he had a history of kidney stones and that a CAT scan performed in September 2008 in Tennessee had confirmed a five mm stone near the left kidney for which he was given pain medication. The appellant denied fever, chills, dysuria, hematuria, frequency, urgency, etc. He was sent for an abdominal/pelvic CAT scan but refused to have blood drawn. He was discharged to home on Vicodin. A VA examination for kidney stones was conducted in February 2010. The examiner indicated that the claims folder was reviewed and pertinent history was recited. The Veteran related that he had renal colic and bladder stones with pain but did not have a problem with urination, weakness, fatigue, loss of appetite, weight loss, weight gain, anorexia, limitation of exertion or recurrent urinary tract infections. He stated that he did not require any procedures for his genitourinary problems. The appellant did state that hospitalization was required two times during the past 12 months. He indicated that he had more than 10 recurrences of kidney stones since 2000, the last time in 2009. Examination of the abdomen was normal. Following examination, it was noted that there was no change in the VA established diagnosis of nephrolithiasis. The examiner added that at that time the Veteran's condition was active with a subjective factor or a history of passing renal stones. The objective factors were noted to be normal abdominal examination and elevated creatine. Legal Analysis The Board finds in this instance that the criteria for a 30 percent rating under 38 C.F.R. § 115b Diagnostic Code 7508-7509 are met. The evidence demonstrates that nephrolithiasis is manifested by recurrent stone formation for which the Veteran was hospitalized in 2004 and noninvasive procedure was recommended. The appellant stated on VA examination in 2010 that hospitalization had been required two times during the past 12 months. He also reported at that time that he had had at least 10 recurrences of kidney stones since 2000. He has indicated that he does not necessarily seek VA treatment for every attack when has pain medication. The Board recognizes that a layperson is competent to describe what comes to him through the senses. See Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Veteran may assert that the symptoms associated with recurrent kidney stones consist of those as specified. The record indicates that while VA examiners have not indicated that the Veteran requires diet therapy, he has been admonished to drink a great deal of water daily and remain hydrated. Clinical records indicate that he uses Vicodin as drug therapy for recurring attacks. VA outpatient records reflect that the condition requires procedures on a recurring basis, including CAT scan of the abdomen/pelvis. Based on the lay and medical evidence and findings, the Board concludes that the Veteran's disability more nearly approximates the criteria for recurrent kidney stones requiring drug therapy more than two times per year. Accordingly, the Board finds that the maximum 30 percent rating is warranted under Diagnostic Codes 7508-7509, and that a uniform rating is appropriate for the entire period. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The benefit of the doubt is resolved in favor of the appellant. Finally, the Board has also considered whether a higher rating for nephrolithiasis is warranted on an extraschedular basis. The potential application of 38 C.F.R. § 3.321(b) (1) (2010) has been considered. The Board points out that the Veteran has been afforded the maximum schedular rating in this regard. The record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." In this regard, the Board finds that there has been no showing by the Veteran that the service-connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Here, the rating criteria reasonably describe the degree of disability and symptomatology associated with kidney stones. The Board thus finds that the current kidney stone disability picture is adequately contemplated by the rating schedule and the assigned schedular evaluation. See Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has not demonstrated such a degree of disability so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the criteria for referral for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (1) (2010) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, an evaluation of 30 percent for service-connected nephrolithiasis is granted. The benefit of the doubt is resolved in favor of the Veteran. ORDER An evaluation of 30 percent for nephrolithiasis is granted subject to controlling regulations governing the payment of monetary awards. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs