Citation Nr: 1320460 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 05-04 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a blood disorder with swollen lymph nodes (claimed as hypo-gammaglobulinemia/immune deficiency and undifferentiated connective tissue disease). 2. Entitlement to a compensable evaluation for residuals of right kidney nephrolithiasis. 3. Entitlement to an initial rating higher than 10 percent for urethral scarring. 4. Entitlement to an initial rating higher than 20 percent for an incisional hernia. 5. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from February 1978 to February 1982. This matter arises to the Board of Veterans' Appeals (Board) from November 2002, May 2003, and September 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In November 2002, the RO issued a rating decision that, in pertinent part, granted service connection and assigned a noncompensable rating for residuals of a right pyelolithotomy (kidney calculi surgery). In May 2003 the RO issued a rating decision that, in pertinent part, denied service connection for a claimed blood disorder and denied entitlement to a total disability rating based on individual unemployability (TDIU). In September 2005, the RO granted service connection and assigned a 20 percent rating for an incisional hernia, effective October 26, 2004. The RO granted service connection and assigned a 10 percent rating for urethral scarring, effective June 12, 2002. In December 2005, the RO amended the effective date for an incisional hernia and its 20 percent rating to June 12, 2002. The Veteran appealed for higher initial ratings. The Board remanded certain issues in October 2009 and again in October 2012. All other issues that were appealed to the Board have been adjudicated and need not be discussed. The evidence in this case consists of paper claims files and electronic records contained in a file known as Virtual VA. As noted above, in a September 2005 rating decision, the RO granted service connection for an incisional hernia and for urethral scarring. The Veteran submitted a timely notice of disagreement (NOD) in November 2005. No statement of the case (SOC) has been issued addressing these issues. Thus, a remand is necessary and the Board has added these issues to page 1 to reflect the Board's jurisdiction. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The record raises the issue of service connection for prostatitis secondary to the now-service-connected urethral scarring. An October 2002 VA compensation examination report notes a history of recurrent prostatitis three or four times per year. In the report, the examiner offered this: ...due to the fact that the patient did have a cytoscopy which did show some scar tissue in his penis, that could be causing some of the problem with the frequency and urgency as well as the prostatitis that the patient is having... While separate service connection for urethral scar tissue has been granted and the initial rating for that disorder is addressed in the Remand portion of this decision, secondary service connection for prostatitis has not been addressed and is referred for initial RO consideration. Entitlement to service connection for a blood disorder, entitlement to higher initial ratings for an incisional hernia and for urethral scarring, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the appeal period, the service-connected residuals of right pyelolithiasis have been manifested by occasional abdominal pain; a history of pyronephrosis or a need for catheterization is not shown. CONCLUSION OF LAW For the entire appeal period, the criteria for a 10 percent initial schedular rating for residuals of right pyelolithiasis are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.115b, Diagnostic Codes 7508, 7509 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has previously remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any 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). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Any timing error with respect to VA's notice letters has been remedied by the Board's two remands followed by issuance of a supplemental statement of the case (SSOC). Regarding the claim for a higher initial rating for residuals of a right kidney pyelolithotomy, an NOD with the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in an SOC. The SOC provided the claimant with the relevant rating criteria for disabilities of the genitourinary system, as listed at various diagnostic codes. The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service treatment records (STRs) and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private treatment reports. The claimant was provided an opportunity to set forth his contentions during the hearing before the undersigned Acting Veterans Law Judge. The claimant was afforded several VA medical examinations. These VA examination reports contain sufficient details and are adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Higher Initial Rating for Right Nephrolithiasis Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. If a Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then TDIU as a result of that disability must be considered. Rice v. Shinseki, 22 Vet. App. 447 (2009). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran seeks an initial compensable rating for residuals of surgery to remove renal and pelvic calculi. The residuals of this right nephrolithiasis have been noncompensably rated for the entire appeal period under 38 C.F.R. § 4.115b, Diagnostic Code 7508. Under that code, nephrolithiasis is rated as hydronephrosis (see Diagnostic Code 7509), except during recurrent stone formation requiring diet therapy, drug therapy, or invasive or non-invasive procedures more than two times per year. The medical evidence reflects that at no time during the appeal period has a recurrent stone formation been shown. Under Diagnostic Code 7509, hydronephrosis is rated 10 percent where an occasional attack of colic does not require catheter drainage. A 20 percent evaluation requires frequent attacks of colic requiring catheter drainage. A 30 percent rating is offered for frequent attacks of colic with infection (pyonephrosis) or other kidney impairment. 38 C.F.R. § 4.115b, Diagnostic Code 7509 (2012). Under Diagnostic Code 7509, where hydronephrosis is shown to be "severe," it must be rated as "renal dysfunction" under the general formula for rating genitourinary system dysfunction where ratings as high as 100 percent are offered. 38 C.F.R. § 4.115a, (2012). No guidance on what symptoms comprise "severe" hydronephrosis, but according to § 4.115, the glomerular type of nephritis is usually preceded by or associated with severe infectious disease; the onset is sudden, and the course is marked by red blood cells, salt retention, and edema. In the diagnostic code mentioned above, the term colic appears. Colic is acute abdominal pain; characteristically, intermittent visceral pain with fluctuations corresponding to smooth muscle peristalsis, Dorland's Illustrated Medical Dictionary 351 (28th ed. 1994). The STRs document that during active service in 1979 the Veteran underwent surgery to remove calculi from his right kidney and pelvic area. In his original, July 2002, service connection claim, he asserted that since the surgery he has had various symptoms, including abdominal pains. He attributed these to the right kidney surgery of 1979. He has repeated these assertions at various times throughout the appeal period. A July 2002 VA out-patient treatment report notes a history of abdominal pain post-surgery since 1979, but does not offer any other details. An October 2002 VA compensation examination report notes a complaint of left upper quadrant abdominal pains. In July 2004, the RO granted service connection for abdominal adhesions and assigned a 10 percent rating. That rating was adjudicated by the Board in October 2012 and need not be discussed. In January 2005, the Veteran alleged that running and jogging was painful. In September 2005, the RO granted service connection and a 20 percent rating for a ventral scar-tissue hernia and granted service connection and 10 percent rating for urethral scarring. Those ratings are addressed in the Remand portion of this decision and need not be discussed further. The Veteran was hospitalized by VA in April 2006. A follow-up report notes uro-sepsis/pyelonephritis, fevers, chills, and leucocytosis, but also notes that the Veteran had no abdominal pain. An October 2006 VA compensation examination report reflects that the Veteran complained of lethargy and weakness. He reported weak stream, dribbling, and little tolerance for holding his urine. He had no renal colic and he had not passed any kidney stones. He had been hospitalized in April 2006, for three days because of a urinary tract infection. The examiner attributed obstructive and irritating urinary symptoms to the service-connected urethral scarring. There was no kidney damage or dysfunction. In April 2007, the Veteran testified that he had fatigue, sweating, chronic prostatitis, frequent urination that is sometimes painful, continuous urinary urgency, slow urine flow, and dribbling and leakage. He testified that right kidney pain felt like an ice-pick was pricking his side. A July 2007 VA genitourinary compensation examination report reflects intermittent right flank discomfort. The examiner dissociated post-void retained urine and enlarged prostate from the service-connected right kidney surgery and stricture disease. In December 2008, the Veteran testified that he had a cyst and extensive scar tissue on the right kidney. He recalled a severe kidney infection in April 2006, for which he was hospitalized. In June 2009, the Veteran testified before the undersigned Veterans Law Judge that he had inflammatory pain in the left side of his abdomen. He testified that every year he has at least one episode of bad lymph nodes, night sweats, and hepatitis-like symptoms that go away in about a week. He testified that he has chronic abdominal pains, that he was sicker than he had ever been from December 2007 to April 2008, and that he was gradually getting worse. In October 2009, the Board remanded the case for a search for medical records. In April 2011, the Veteran reported recent nausea, elevated liver enzymes, and an abnormal ultrasound. In October 2012, the Board remanded the case for another examination. A January 2013 VA nephrology compensation examination report reflects a history of nephrolithiasis with ureto-pelvic obstruction, status post pyelolithotomy. The report reflects no current kidney dysfunction and no recurrent stone formation. The examiner indicated that the Veteran had no sign or symptom of urolithiasis, but did have a history of urinary tract infections. From the medical history discussed above, it is apparent that throughout the appeal period, the service-connected residuals of right pyelolithotomy have been manifested by abdominal pains. While some of these abdominal pains are likely due to other causes and even though the pains due to pyelolithotomy are only occasional, the criteria of a 10 percent rating are more nearly approximated. The criteria for a schedular rating greater than 10 percent are not more nearly approximated because no pyronephrosis or need for catheterization has been shown. The medical evidence offered in this case is persuasive, as it is based on accurate facts and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The lay testimony is competent with regard to descriptions of symptoms. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay person is competent to identify the medical condition. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, 21 Vet. App. at 510. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. An initial 10 percent rating for residuals of right kidney nephrolithiasis must be granted. Extra-schedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, an extra-schedular rating is addressed further in the Remand portion of the decision. ORDER An initial 10 percent schedular rating for right kidney nephrolithiasis is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. REMAND Service Connection for a Blood Disorder The Veteran seeks service connection for an acquired a blood-related disability, manifested as an immune deficiency and other symptoms. He claims that a blood transfusion during active service is the source of each current blood-related disability. His STRs document that during active service in 1979 he underwent surgery to remove calculi from his right kidney and pelvic area. Although the surgery report does not mention a blood transfusion, he recalled that six units of blood were used. Physicians who have reviewed the case appear to agree that this surgery might have involved a blood transfusion, even though the STRs make no mention of the fact. A negative nexus opinion was recently offered by a VA physician. Although the Board may not second-guess a medical expert based upon its own opinion, it cannot accept the opinion of a physician whose opinion is not clear enough for a lay adjudicator to understand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). A January 2013 VA compensation examination report and etiology opinion clearly dissociates each of the current blood-related diagnoses from the service-connected kidney surgery. However, while the physician clearly dissociates any blood disorder from the right kidney nephrolithiasis surgery itself, the physician did not address the claimed etiology, which is an alleged 1979 blood transfusion. If a report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA provides a medical examination, the Board must ensure that it is adequate.). In April 2007, December 2008, and June 2009, the Veteran testified that he recalled that six units or pints of blood were transfused because of unexpected bleeding that occurred during kidney surgery in 1979. The Veteran has written multiple letters to VA stressing that the blood transfusion is the cause of several current diagnoses. While the recent Board remand instruction asked the examiner whether the blood disorder was related to the 1979 surgery the instructions did not specifically ask the examiner to address the claimed transfusion etiology. Also, as the January 2013 examiner made no mention of the claimed blood transfusion and, instead, simply noted the 1979 surgery, the January 2013 VA examination hematologic and lymphatic conditions examination report must therefore be returned to the examiner for an addendum opinion. The physician is asked to review the pertinent medical history and then address whether it is at least as likely as not (50 percent or greater possibility) that the claimed blood transfusion in 1979 caused the current blood-related disorders. Initial Ratings for Incisional Hernia and for Urethral Scarring In a September 2005 rating decision, the RO granted service connection for an incisional hernia and for urethral scarring and assigned initial disability ratings. In November 2005, the Veteran submitted a timely NOD to the two assigned disability ratings. No SOC has been issued addressing these issues and it is not clear that the Veteran has withdrawn his NOD. In accordance with 38 C.F.R. § 19.26, unless the matter has been resolved by a grant of benefits or the NOD is withdrawn by appellant or his representative, the agency must prepare an SOC. Thus, a remand is necessary. Manlincon, 12 Vet. App. at 240-41; VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Entitlement to TDIU The appeal for TDIU is inextricably intertwined with other claims that are remanded or referred for more development. Therefore, the TDIU claim is also remanded for further development, as set forth below. According to 38 C.F.R. § 4.16 (a) (2012), total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 3.321(b) (2012) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. However, the Court specifically held that "the Board is precluded from assigning such a rating in the first instance." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). The Court further stressed that consideration of an extra-schedular rating involves three-steps. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. The percentage standards for TDIU listed at 38 C.F.R. § 4.16 (a) are not met. Where the percentage standards are not met, TDIU may nevertheless be assigned under 38 C.F.R. § 4.16 (b) or under § 3.321(b). As explained above, this matter must first be remanded to the Director, Compensation and Pension Service for appropriate action. Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should return the claims files to the physician who performed the January 2013 Hematologic and Lymphatic Conditions examination for an addendum. The physician is asked to do the following: I. Note a review of the claims files and Virtual VA in the report. II. Address whether it is at least as likely as not (50 percent or greater probability) that that a claimed blood transfusion in 1979 caused the current blood-related disorders. The physician should offer a rationale for any conclusion in a legible report. The Veteran may be re-examined if necessary. If the specified physician is unavailable, a qualified substitute may be used. 2. Following the above, the AMC should review the relevant evidence and re-adjudicate the service connection claims. If the desired benefits are not granted, an appropriate SSOC should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. 3. The AMC should issue an SOC addressing the initial ratings for an incisional hernia and for urethral scarring. These issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. 4. The AMC should arrange for a physician (an M.D.) to offer a medical opinion. The physician is asked to do the following: I. Note a review of the claims files and Virtual VA. As of this writing, the claims files reflects that service connection is in effect for incisional hernia, abdominal adhesions, urethral scarring, and residuals of right nephrolithiasis. II. Offer an opinion addressing whether it is at least as likely as not (50 percent or greater probability) that all service-connected disabilities would prevent the Veteran from securing and following a substantially gainful occupation. The physician should offer a rationale for any conclusion in a legible report. The Veteran may be examined if necessary. 5. Following the above, the AMC should review all relevant evidence and re-adjudicate the TDIU claim. If the percentage standards for TDIU set forth at 38 C.F.R. § 4.16(a) are not met, but the medical opinion obtained above nevertheless indicates that the Veteran is unemployable by reason of service-connected disabilities, the rating board should submit the claim to the Director, Compensation and Pension Service for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b) and for any additional extra-schedular consideration due under 38 C.F.R. § 3.321 (b). Following that action, if the desired benefits are not granted, an appropriate SSOC should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for examination without good cause (if an examination is scheduled) could result in the denial of the claim. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs