Citation Nr: 1321013 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 00-11 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable initial evaluation for recurrent urinary tract infections (UTIs). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1983. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that granted service connection for recurrent UTIs, evaluated as noncompensable. The Board notes that 2012 notations in the claims file indicate that Volume 1 of the Veteran's claims file has been rebuilt. Thus, the September 1999 rating decision is not available. When this issue was previously before the Board in August 2003, February 2007, February 2010, and September 2012, it was remanded for additional development. For the reasons discussed below, the Board finds that its directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran's recurrent UTIs result in recurrent stone formation requiring one or more of the following: 1) diet therapy; 2) drug therapy; and 3) invasive or non-invasive procedures more than two times per year; an occasional attack of colic, not infected and not requiring catheter drainage; poor renal function; or long-term drug therapy, 1 to 2 hospitalizations per year, and/or intermittent intensive management. CONCLUSION OF LAW The criteria for a compensable initial evaluation for recurrent UTIs have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Codes 7509 and 7510 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Here, the Veteran is appealing the initial rating assignment. In this regard, because the September 1999 rating decision granted the Veteran's claim of entitlement to service connection, such claim is now substantiated. Her filing of a notice of disagreement as to the initial rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2012). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. An April 2000 statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant Diagnostic Code for rating the urinary tract infections and renal dysfunction. A March 2012 supplemental statement of the case (SSOC) provided Diagnostic Code 7510 for ureterolithiasis. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. To the extent that VA did not adequately inform the Veteran of what was necessary to achieve a higher rating for the service-connected disability at issue, the Board observes that a May 2012 Post-Remand Brief sets forth the complete criteria for all potentially relevant diagnostic codes. This fact shows that the Veteran has actual knowledge of any potentially relevant diagnostic code. In addition, the March 2012 SSOC provided the Veteran the November 2009 SOC and May 2007 VCAA letter, as requested by the February 2010 remand. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, records from the Social Security Administration, and the Veteran's statements. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As noted above, Volume 1 of the Veteran's claims file has been rebuilt. Thus, a September 1999 VA examination report is not available. The Board will discuss its findings below, as reported in an April 2000 SOC. Additional VA examinations with respect to the Veteran's claim were conducted in May 2006 and December 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the May 2006 and December 2011 VA examinations conducted in this case were more than adequate, as they reflect a review of the Veteran's claims file and consider all of the pertinent evidence of record, including the Veteran's statements. Additionally, the reports provide clinical findings which are pertinent to the criteria applicable for rating the Veteran's disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Because this appeal is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's disability is evaluated as ureterolithiasis under Diagnostic Code 7510. Ureterolithiasis is to be rated as hydronephrosis, except for recurrent stone formation requiring one or more of the following: 1) diet therapy; 2) drug therapy; and 3) invasive or non-invasive procedures more than two times per year, which warrant a 30 percent evaluation. Hydronephrosis is rated under Diagnostic Code 7509. A 10 percent rating requires a showing of an occasional attack of colic, not infected and not requiring catheter drainage. For a 20 percent rating, there must be frequent attacks of colic, requiring catheter drainage. In addition, 38 C.F.R. § 4.115a provides that urinary tract infections with poor renal function should be rated as renal dysfunction. Urinary tract infections requiring long-term drug therapy, 1 to 2 hospitalizations per year, and/or intermittent intensive management are evaluated at 10 percent. Recurrent symptomatic urinary tract infections requiring drainage/frequent hospitalization (greater than 2 times per year) and/or continuous intensive management result in the highest rating of 30 percent. The Veteran generally contends that her recurrent urinary tract infections warrant a compensable initial evaluation. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. The evidence, as discussed below, simply does not show that the Veteran's service-connected UTIs satisfy the criteria for a compensable initial evaluation. According to the April 2000 SOC, the September 1999 VA examination report provides that the Veteran reported at least 8 kidney infections a year with antibiotic therapy at least 3 or 4 times a year. She had experienced that problem that year. There had been no catheterization. The Veteran complained of stress incontinence on a daily basis. Examination showed no stress incontinence. The diagnosis was recurrent urinary tract infections. In an April 2003 VA treatment report, the Veteran reported clear watery discharge, with no bleeding, and stated that she went through 4 pads per day. She suggested that the discharge could be from the bladder and complained of both mild stress and nonstress incontinence. A June 2003 VA treatment report reflects assessments of incontinence, hematuria, and ascites. In a July 2004 VA treatment report, the Veteran reported constant leaking and frequent infections. The assessments were incontinence, urinary tract infections, and microscopic hematuria. The Veteran was provided a May 2006 VA examination. The VA examiner indicated that the Veteran's claims file was reviewed. The Veteran reported a history of problems with urinary tract infections and chronic pelvic pain. She reported that since the previous year her bladder had fallen down into her pelvis, which caused pain. The examiner noted that the Veteran's most recent UTI as noted in her computer records occurred in September 2005. The Veteran had had no renal colic, bladder stones, acute nephritis, or hospitalizations for urinary tract disease in the last year. She did not use a catheter and was not on any specific diet, medications or long-term antibiotics. She was given antibiotics whenever she had a UTI. The examiner noted that the Veteran was not on any long-term drug therapy for UTIs. She had not had hospitalizations of at least 1-2 times per year. The Veteran's UTIs did not require intermittent intensive management. There was no renal dysfunction manifested by albumin constant or recurring with hyaline or granulomatous casts, or transient or slight edema. The pertinent diagnosis was UTIs. The examiner reiterated that the Veteran did not currently require long-term therapy, hospitalizations or intermittent intensive management for her UTIs. The Veteran's UTIs were not responsible for her hypertension because she did not have any evidence of kidney dysfunction, as evidenced by February 2006 lab work. VA treatment records dated from July to August 2006 reflect continuing assessments of urinary incontinence, as well as urthrocele. VA treatment reports dated in November 2006, January 2007, March 2011, and April 2011 reflect the Veteran's complaints of urinary leakage, incontinence, and hematuria. A June 2011 VA genitourinary examination report noted that the Veteran had several instances of abnormal urinalysis testing, including the ones conducted in April 2011, September 2009, September 2008, March 2008, and February 2008; on these tests, her urine was negative for nitrites which indicated that there probably was not an infection present, however, the tests were positive for red blood cells, white blood cells, and crystals, indicating that there was in fact a urinary problem, hematuria being one of them. The report stated that the Veteran had been disabled since a motor vehicle accident in 1995 in which she had severe injuries. The Veteran currently complained of frequent urination and leakage. The diagnoses were urinary incontinence and hematuria. The report of the December 2011 VA examination sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran had no voiding dysfunction, no history of urethral or bladder calculi (cysto- or ureterolithiasis), and no current or past bladder or urethral fistula, stricture, neurogenic bladder or bladder injury. The Veteran did have recurrent symptomatic urethral or bladder infections that were noted to require no treatment. The examiner noted that it was thought that the Veteran might have a urethral diverticulum but an evaluation could not be completed because the Veteran could not get anesthesia clearance due to drug abuse. The examiner found that the Veteran's condition of the bladder or urethra did not affect her ability to work. The examination provided a diagnosis of urinary incontinence, not related to the Veteran's recurrent infections. The Board has reviewed VA treatment records contained in the claims file and/or Virtual VA File. These records, dated through June 2012, are simply negative for any evidence that the Veteran's recurrent UTIs satisfy the criteria for a compensable initial evaluation. The foregoing VA medical evidence simply does not show that the Veteran's recurrent UTIs warrant a compensable initial evaluation under the diagnostic criteria for ureterolithiasis or for UTIs. The medical evidence does not show that Veteran's recurrent UTIs result in recurrent stone formation requiring one or more of the following: 1) diet therapy; 2) drug therapy; and 3) invasive or non-invasive procedures more than two times per year; an occasional attack of colic, not infected and not requiring catheter drainage; poor renal function; or long-term drug therapy, 1 to 2 hospitalizations per year, and/or intermittent intensive management. The Veteran is competent to report the urinary symptoms she experiences, and the Board finds her credible in this regard. To that effect, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d at 1315-16. However, whether the Veteran's reported symptoms, primarily consisting of urinary incontinence, are related to her recurrent urinary infections or some other causes is a complex medical issue for which lay testimony alone would be inadequate to support the claim. Hence, as the Veteran has not been shown to have had the necessary medical training, the Veteran's statements offered in support of the claims do not constitute competent evidence, and are lacking in probative value given the December 2011 VA examiner's statement that her diagnosis of urinary incontinence is not related to her recurrent UTIs. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the schedular rating in this case is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected recurrent UTIs. See Thun, 22 Vet. App. at 115. The Veteran's recurrent UTIs are evaluated by the rating criteria which specifically contemplate the frequency and intensity of the required therapy, treatments and/or hospitalizations, as well as the frequency of attacks of colic, caused by this disability. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. When comparing the Veteran's symptoms with the schedular criteria, the Board finds that the Veteran does not have symptomatology associated with her disability that had been unaccounted for by the currently assigned schedular rating. See 38 C.F.R. § 4.115, Diagnostic Codes 7509 and 7510. Accordingly, a comparison of the Veteran's symptoms resulting from her recurrent UTIs with the pertinent schedular criteria does not show that her service-connected disability presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). In sum, the evidence demonstrates that the Veteran is not entitled to a compensable initial evaluation for recurrent UTIs at any time during the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating for compensation purposes based on individual unemployability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders her totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER A compensable initial evaluation for recurrent UTIs is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs