Citation Nr: 1319893 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-08 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable rating for hydronephrosis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1948 to November 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran is seeking a compensable disability rating for hydronephrosis. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes (DCs) identify the various disabilities. See 38 C.F.R. Part 4 (2012). Hydronephrosis is rated under DC 7509, and a 10 percent rating is assigned when the evidence shows only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent rating is warranted for frequent attacks of colic, requiring catheter drainage. To qualify for a 30 percent rating, the service-connected disability must be manifested by frequent attacks of colic with infection (pyonephrosis), kidney function impaired. The Board observes that "colic" is defined as acute abdominal pain. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 389 (31st ed. 2007). Severe hydronephrosis is rated as renal dysfunction. See 38 C.F.R. § 4.115b (2012), DC 7509. The schedule for rating renal dysfunction is found under 38 C.F.R. § 4.115a. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1647 (31st ed. 2007) ("renal" pertains to the kidneys"). A 30 percent rating is assigned when albumin is constant or recurring with hyaline and granular casts or red blood cells; or, when there is transient or slight edema or hypertension at least 10 percent disabling under DC 7101. A 60 percent rating is assigned when there is constant albuminuria with some edema; or, a definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is assigned for persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent evaluation contemplates cases requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. See 38 C.F.R. § 4.115a. The Veteran last had a VA examination in July 2010. Although the mere passage of time is insufficient to require a new examination, the July 2010 VA examination is not adequate for rating purposes because it does not directly address the factors contemplated under the rating schedule. Specifically, DC 7509 is primarily based on the frequency of colic, defined as acute abdominal pain, and whether it is accompanied by infection or the need for draining. It also requires a full report on kidney function to determine whether the symptoms are more appropriately rated under renal dysfunction. The July 2010 VA examination does not adequately address the Veteran's symptomatology and the examiner appears to have been directed to issue an opinion on etiology rather than the severity of the disability. The Veteran has submitted personal statements wherein he asserts that he has had renal colic frequently over the previous fifty years, as well as still currently; however, he has not complained of pain. The evidence shows he complained of constant pain due to the removal of his kidney in April 2009, and that he was prescribed Ultracet for pain in October 2009, but it is unclear whether these complaints were due to his service-connected disability. Further, the July 2010 VA examination inquired into episodes of colic, but only those episodes that included an infection. This is inappropriate because a rating can be assigned without evidence of infection. On remand, an examination should be conducted that addresses the severity of all of the Veteran's symptoms. The Board notes that the present level of the Veteran's disability is the primary concern, and so the relevant temporal focus is on the evidence dating from one year prior to the filing of the claim for a higher rating. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the Veteran identify any additional treatment he has received for his hydronephrosis since March 2010. Make arrangements to obtain the records identified. 2. Upon completion of the foregoing, schedule the Veteran for an appropriate VA examination to assess the severity of his hydronephrosis and that also completely addresses renal function. The VA examiner is asked to review the claims folder and a copy of this remand. The examiner is asked to conduct an examination that addresses the Veteran's symptoms. Specifically, the yearly number of episodes of colic, with and without infection or the need for draining, should be determined. The Veteran should be asked specifically about pain. The examiner is asked to comment on the April 2009 and October 2009 records wherein the Veteran complained of pain subsequent to kidney surgery, and was prescribed Ultracet for pain, and whether these instances should be considered episodes of colic. If the examiner is unable to discern whether complained of pain would be classified as colic, then please so state. The examiner is asked to elicit a full history from the Veteran regarding his disability, including the frequency of medical appointments and episodes of pain. The examiner is further advised to consider and discuss the Veteran's relevant lay statements, even if they are not supported by the medical evidence of record. The examiner must provide a comprehensive report regarding the severity of the Veteran's hydronephrosis. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 3. Upon completion of the above, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. Parakkal Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).