Citation Nr: 1325987 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 00-20 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to an initial rating in excess of 10 percent effective September 15, 1999, 20 percent effective September 16, 2005, and 30 percent effective December 22, 2011, for chronic cystitis. 3. Entitlement to a compensable initial rating prior to April 13, 2005, and in excess of 30 percent thereafter for chronic pyelonephritis. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1967 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 1999 and July 2010 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. The July 2010 rating decision awarded the Veteran service connection for chronic cystitis and for chronic pyelonephritis. A staged initial rating of 10 percent effective September 15, 1999, and of 20 percent effective September 16, 2005 was assigned for cystitis, and an initial noncompensable rating effective September 15, 1999 was assigned for pyelonephritis. The Veteran initiated appeals of these initial rating determinations. He was subsequently sent a statement of the case regarding these issues on February 13, 2012. His substantive appeal was received on April 16, 2012, 63 days later. Generally, receipt of a substantive appeal more than 60 days after the mailing of the statement of the case would establish the substantive appeal as untimely. See 38 U.S.C.A. § 7105(d)(3) (West 2002). In the present case, however, the Board notes that the substantive appeal is dated April 13, 2012, within 60 days, and is presumed to have been mailed on the same day. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held absent clear statutory abrogation it must be presumed that the common law mailbox rule applies and, in the present circumstance, the Board finds that application such a rule is not precluded or contrary to any applicable statute or regulation. See Savitz v. Peake, 519 F.3d 1312, 1315-16 (Fed. Cir. 2008) (noting that the common law mailbox rule is properly considered in the context of determining if a notice of disagreement is timely); Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007). Thus, the Board finds the April 2012 substantive appeal was filed in a timely fashion, and these issues are perfected for Board consideration. During the pendency of this appeal, the Veteran has been granted increased ratings for his cystitis and pyelonephritis. His disability rating for cystitis was increased to 30 percent effective December 22, 2011, and his rating for pyelonephritis was increased to 30 percent effective April 13, 2005. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issues of entitlement to increased disability ratings remain in appellate status. The service connection claim for a back disorder has been the subject of multiple Board decisions and subsequent appeals to the United States Court of Appeals for Veterans Claims (Court). The Board initially denied the claim on appeal in a June 2004 decision. The Veteran appealed this decision to the Court. Based on a September 2004 Joint Motion for Court Remand (Joint Motion or JMR), the Court remanded the Board's decision for development in compliance with the Joint Motion. In a June 2005 action, the Board remanded the claim for an examination and medical opinions regarding the Veteran's back disorder. The Board again denied the claim on appeal in an April 2006 decision. The Veteran again appealed to the Court. Based on an August 2007 Joint Motion, the Court remanded the Board's decision for development in compliance with the Joint Motion. The Joint Motion noted that the VA examiner had not answered the questions posed by the Board's remand with the correct standard. In May 2008, the Board remanded the claim for an examination and to obtain required etiological medical opinions. The Board most recently denied the service connection claim on appeal in a December 2008 decision. The Veteran appealed to the Court. Based on a November 2009 Joint Motion, the Court remanded the Board's decision for development in compliance with the Joint Motion. The JMR noted that both the Board and the VA examiners had ignored a pertinent piece of medical evidence. In March 2010, the Board remanded the issue on appeal for an examination and readjudication. Upon return of this appeal to the Board in June 2012, it was again remanded for an examination addendum. Because the Board finds full compliance with the Board's June 2012 remand order was not obtained, another remand is again warranted. The Veteran was afforded a September 2001 personal hearing before a Veterans Law Judge seated at the RO. A written transcript of this hearing was subsequently added to the claims file. The Veterans Law Judge who conducted this hearing is no longer employed by the Board. The law requires that the Veterans Law Judge who conducts a hearing must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). The Veteran was offered another opportunity to testify before a current Veterans Law Judge. He responded, however, in December 2012 that he did not desire another hearing. Thus, remand of his appeal on that basis is not warranted. The issue of entitlement to service connection for a back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to September 16, 2005, the Veteran's cystitis was characterized by the absence of need for absorbent materials or intermittent or continuous catheterization, and urinary frequency of approximately 5 times per day and once at night. 2. For the period from September 16, 2005, to December 22, 2011, the Veteran's cystitis was characterized by the absence of need for the use of absorbent materials or intermittent or continuous catheterization, and urinary frequency less than once every hour during the day and less than five times at night. 3. For the period effective December 22, 2011, the Veteran's cystis is characterized by the absence of need for the use of absorbent materials, and urinary frequency less than every hour during the day and less than five times at night. 4. For the period prior to April 13, 2005, the Veteran's pyelonephritis did not result in albumin which was constant or recurring with hyaline and granular casts or red blood cells, transient or slight edema, hypertension to a compensable degree, long term drug therapy, 1-2 hospitalizations per year and/or intermittent intensive management. 5. For the period effective April 13, 2005, the Veteran's pyelonephritis did not result in constant albuminuria with some edema, definite decrease in kidney function or hypertension compensable to a degree of 40 percent or more. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent prior to September 16, 2005, in excess of 20 percent prior to December 22, 2011, or in excess of 30 percent thereafter for the Veteran's chronic cystitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7512 (2012). 2. The criteria for entitlement to a compensable initial rating prior to April 13, 2005, or in excess of 30 percent thereafter for the Veteran's chronic pyelonephritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7504 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case, as to the issues decided herein, VA has satisfied its duties to notify the Veteran under the VCAA. In a May 2006 letter, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, this letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The initial notice was issued prior to the adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Concerning the issues of higher initial rating for service-connected disabilities, as these issues concern an initial rating and come before the Board on appeal from the decision which also granted service connection following a notice of disagreement with the initial rating, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103(a) notice for the service connection claims. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). The Board further finds that VA has complied with the duty to assist by aiding in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical treatment records. The Veteran was also afforded VA medical examinations on several occasions, including in April 2003, September 2005, October 2011, and most recently in December 2011. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Board also notes that the Veteran has reported being awarded Social Security Disability benefits in the early 1980's, and the records of such an award have not been obtained, as generally required by VA's duty to assist. VA has an obligation to obtain Social Security Administration records associated with a Veteran's claim for Social Security Disability benefits. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In the present case, however, the Veteran has stated that the award of Social Security Disability benefits was unrelated to his kidney disabilities; thus, such records are not pertinent, by the Veteran's own admission, to his pending claims. In the present context, remand for these records is not required under the law and would only further delay resolution of the Veteran's appeal without raising the possibility of additional benefits being awarded him. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Thus, adjudication of these issues at this time is proper. Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When, however, the assignment of initial ratings is under consideration, the level of disability in all periods since the effective date of the grant of service connection must be taken into account. Where appropriate, staged ratings may be assigned, as has already been accomplished in the present case. See Fenderson v. West, 12 Vet. App. 119 (1998). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Cystitis is rated under Diagnostic Code 7512, which makes reference to the criteria for voiding dysfunction. Diagnostic Code 7504, for pyelonephritis, refers to the rating criteria for renal dysfunction or urinary tract infection, whichever is predominant. Pursuant to 38 C.F.R. § 4.115a , a 10 percent rating is warranted for a urinary tract infection that requires long term drug therapy, 1-2 hospitalizations per year and/or requires intermittent intensive management. A 30 percent rating is warranted when urinary tract infections are manifested by recurrent symptomatic infections requiring drainage/frequent hospitalization (greater than two times/year) and/or requires continuous intermittent management. A 30 percent evaluation is the maximum schedular rating for urinary tract infection, but urinary tract infections resulting in renal dysfunction may be rated under the criteria for that disability. 38 C.F.R. § 4.115a (2012). Renal dysfunction is also evaluated under 38 C.F.R. § 4.115a. A noncompensable evaluation is warranted for renal involvement when the evidence shows albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. A 30 percent evaluation is warranted when albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent evaluation is for application when there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent evaluation is applicable when there is persistent edema and albuminuria with BUN 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 is warranted for renal involvement 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. 38 C.F.R. § 4.115a. Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding, whichever is predominant. The criteria for voiding dysfunction are as follows: Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating. When the wearing of absorbent materials which must be changed 2 to 4 times per day is required, a 40 percent rating is warranted. When the wearing of absorbent materials which must be changed less than 2 times per day is required, a 20 percent rating is warranted. Urinary frequency characterized by daytime voiding intervals of less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. Daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating. Daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent rating. Obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. A 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc. 2. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec). 3. Recurrent urinary tract infections secondary to obstruction. 4. Stricture disease requiring periodic dilatation every 2 to 3 months. 38 C.F.R. § 4.115a. Chronic Cystitis As noted above, the Veteran has been awarded an initial rating of 10 percent effective September 15, 1999, 20 percent effective September 16, 2005, and 30 percent effective December 22, 2011, for chronic cystitis. He asserts that increased ratings are warranted. The pertinent rating criteria have been indicated above. In September 2001, the Veteran testified before a Veterans Law Judge. He stated that he injured his kidneys during service, and experienced hematuria at that time. Current symptoms have included burning on urination and occasional hematuria. An October 2002 VA urinalysis was negative for hematuria. According to concurrent clinical treatment notes, however, the Veteran claimed a history of blood in his urine. The Veteran sought treatment for burning on urination, urinary hesitancy, a weak stream, and difficulty initiating urination. Prostatitis was diagnosed, and he was given medication. In April 2003, the Veteran sought VA outpatient treatment for burning with urination. The Veteran was afforded a VA medical examination in April 2003 which assessed his genitourinary disorders, among other claims. The claims file was reviewed in conjunction with the examination. Current symptoms reported by the Veteran included a burning pain on urination, and occasional urinary tract infections, not requiring hospitalization. He reported his last urinary tract infection was in 2002, and lasted for approximately 14 days. He was given medication by his physician, which eventually resolved his infection. He also reported some lethargy and weakness, but denied anorexia. He weighted 160 pounds, a loss of 10 pounds from one year ago. He reported a urinary frequency of 5 times during the day and once at night. He described some hesitancy, with a normal stream and some reported dysuria. He did not require dilation, drainage, or intermittent or constant catheterization. He denied any post-service surgery involving his bladder or kidneys. He passed a kidney stone approximately 8-10 years ago. Frequent acute nephritis was also reported by the Veteran. He did not use medication to aid his urination and kidney function, and denied having a special diet. He denied any problems with sexual functioning. His blood pressure readings were 108/62 sitting, and 120/74 for both standing and lying down. A urinalysis was within normal limits. Concerning the Veteran's chronic pyelonephritis, the examiner found no evidence of current disease, or any current urinary tract infections or other kidney disorders. VA treatment records for 2003 indicate the Veteran was negative for hypertension at that time. An August 2003 clinical notation described the Veteran's blood pressure as "low" at that time and another clinical record generated that same month suggested the Veteran's blood pressure was borderline for hypotension, or low blood pressure. The Veteran again sought VA treatment in October 2004, at which time he denied gross hematuria, but reported a small amount of blood in his urine recently. Urinalysis was negative for hematuria. In May 2005, the Veteran was seen by a private examiner for a cystoscopy. The findings were essentially normal, with the exception of some mild chronic cystitis observed. Microhematuria, considered benign, was also present. On cardiac consultation in June 2005, hypertension was not listed as among his current disorders. Another VA examination was afforded the Veteran in September 2005. The claims file was reviewed in conjunction with the examination. Reported symptoms included lethargy, weakness, and anorexia. His current weight was 164 pounds, with a high of 185 pounds in the past year. Reported daytime urinary frequency was 6-8 times per day, and 2 times at night. He reported some hesitancy, and a decreased stream. Chronic dysuria was also reported. He denied incontinence, but reported impotency for the past 6 years. The examiner attributed the Veteran's impotency to his diabetes, which was first diagnosed in 1972. The Veteran also reported 6-8 urinary tract infections since service separation, and he stated he was on antibiotics in the past year. He denied any kidney or bladder stones. Recurrent acute nephritis was also reported by the Veteran. He denied any hospitalizations or surgeries related to his genitourinary disabilities. He did not require dilation, drainage, or regular catheterization. He was not on a restricted or special diet. Blood pressure readings included 126/72 sitting, 115/68 standing, and 115/78 lying down. Urinalysis was within normal limits, without evidence of blood or excessive albumin in his urine. In a February 2006 letter, P.M.C., M.D., stated he has been the Veteran's primary care physician since August 1999. He stated that the Veteran has complained since that time of intermittent dysuria and hematuria. In October 2011, the Veteran was again afforded a VA medical examination of his kidneys. His claims file was reviewed in conjunction with the examination, and the history of his service-connected disabilities was noted. A history of urolithiasis was also noted, but no current signs or symptoms were present. The examiner found no evidence of renal dysfunction, including persistent hematuria, proteinuria, or need for dialysis. The Veteran was taking medication to control kidney stone formation and prevent further urinary tract infections. He did not require, however, hospitalization, surgery, bladder drainage, or other more intensive measures. No hypertension or renal disease was linked to the Veteran's kidney condition. His urinalysis was within normal limits. Finally, the Veteran's genitourinary disabilities did not prohibit him from working, according to the VA examiner. Most recently, in December 2011, the Veteran was afforded a VA genitourinary examination. The history of his service-connected genitourinary disabilities was noted. The examiner noted that the Veteran exhibited a voiding dysfunction. He did not require the use of absorbent materials or an appliance, and his urinary frequency was within normal limits. His voiding dysfunction did, however, result in some hesitancy, a slow or weak stream, recurrent urinary tract infections, and urinary retention requiring intermittent catheterization. His most recent catheterization was in 2011 at a private hospital. No other genitourinary surgery was noted. The Veteran was also noted to be on medication therapy to control his bladder stone formation, and on antibiotics to control his urinary tract infections. Considering first the period prior to September 16, 2005, for which the Veteran has been awarded a 10 percent initial rating, the Board finds the preponderance of the evidence to be against an increased initial rating for this period. As is noted above, the Veteran's cystitis is evaluated based on voiding dysfunction, which in turn is rated based on urine leakage, frequency, or obstructed voiding, whichever is predominant. Considering first urine leakage, the Veteran reported no such symptoms during the time period in question. While he was afforded VA examination in April 2003, he did not report the use of absorbent materials at that time. Also on April 2003 VA examination, the Veteran reported urinary frequency of approximately 5 times per day and once at night, well below the daytime voiding intervals between one and two hours, or awakening to void three to four times per night, as required for a 20 percent rating. Finally, the Veteran consistently denied, during the time period in question, urinary retention requiring intermittent or continuous catheterization; thus, a disability rating in excess of 10 percent based on obstructed voiding is not warranted for the period prior to September 16, 2005. Overall, the preponderance of the evidence is against an initial rating in excess of 10 percent prior to September 16, 2005, for the Veteran's chronic cystitis. Next, the Veteran has been granted a disability rating of 20 percent for the period from September 16, 2005, to December 22, 2011. Considering first urine leakage, the Veteran reported no such symptoms during the time period in question, and did not report the need for the use of absorbent materials at that time. He also did not report urinary frequency characterized by daytime voiding intervals of less than one hour, or awakening to void five or more times per night, as required for the next higher evaluation of 40 percent. Finally, between September 2005 and December 2011, the Veteran again consistently denied urinary retention requiring intermittent or continuous catheterization; thus, a disability rating in excess of 20 percent based on obstructed voiding is not warranted for the period between September 16, 2005, and December 22, 2011. Overall, the preponderance of the evidence is against an initial rating in excess of 10 percent prior to September 16, 2005, for the Veteran's chronic cystitis. Finally, the Veteran has been granted a 30 percent disability rating effective December 22, 2011. This award represents the maximum schedular evaluation based on obstructed voiding. On VA examination in December 2011, he denied the need for absorbent materials in his undergarments, and his urinary frequency was found to be within normal limits, without either daytime voiding intervals of less than one hour or five or more times at night. Thus, the preponderance of the evidence is against the award of an initial rating in excess of 30 percent effective December 22, 2011. Additionally, as the staged ratings assigned by the RO are appropriate to the time periods in question, the assignment of additional staged ratings is not warranted at this time. See Fenderson, 12 Vet. App. at 119. Entitlement to an extraschedular evaluation will be considered below. The Board also notes that while the Veteran has reported recent onset of impotence, this disorder was attributed by a VA examiner to his diabetes, which has not been granted service connection. Therefore, the award of a separate rating based on this genitourinary symptom is not warranted. In conclusion, the Board finds that the weight of the lay and medical evidence is against a disability rating in excess of 10 percent prior to September 16, 2005, in excess of 20 percent prior to December 22, 2011, or in excess of 30 percent thereafter for the Veteran's chronic cystitis. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Chronic Pyelonephritis As noted above, the Veteran has been awarded a noncompensable initial rating prior to April 13, 2005, and a 30 percent rating thereafter for chronic pyelonephritis. He asserts that increased ratings are warranted. The pertinent rating criteria have also been indicated above. Also noted above are the pertinent reported symptoms and clinical findings of the Veteran's service-connected genitourinary disorders, chronic cystitis and pyelonephritis. As such, they need not be repeated here. Considering first the period prior to April 13, 2005, for which the Veteran has been awarded a noncompensable initial rating, the Board finds the preponderance of the evidence is against a compensable rating. Prior to April 13, 2005, the Veteran did not exhibit albumin which was constant or recurring with hyaline and granular casts or red blood cells, transient or slight edema, or hypertension to a compensable degree. While the Veteran did report hematuria on several occasions prior to April 2005, urinalysis studies in October 2002, April 2003, and October 2004 were all negative for red blood cells in his urine. Additionally, hypertension has not been shown to manifest to a compensable degree prior to April 13, 2005. The Veteran's blood pressure readings prior to that date do not indicate hypertension to a compensable degree as defined by VA at 38 C.F.R. § 4.104, Diagnostic Code 7101, and the evidence does not reflect a hypertension diagnosis; in fact, the Veteran was considered borderline hypotensive during this period. A compensable initial rating prior to April 13, 2005, is also not warranted based on urinary tract infections. The Veteran's pyelonephritis during this time period did not require long term drug therapy, 1-2 hospitalizations per year and/or intermittent intensive management. According to the medical records on file, the Veteran had one urinary tract infection prior to April 2005, which was treated by antibiotics and did not require hospitalization. He also did not require ongoing medication or other intensive therapy thereafter. Thus, the preponderance of the evidence is against a compensable initial rating prior to April 13, 2005. Considering next entitlement to an initial rating in excess of 30 percent effective April 13, 2005, the Board notes that a 30 percent award represents the maximum schedular evaluation for recurrent urinary tract infections. Thus, the Board will now consider entitlement to an increased initial rating based on renal dysfunction. The next higher evaluation of 60 percent requires constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. None of those findings have been demonstrated in the present case. The Veteran's April 2005, September 2005, and October 2011 urinalysis studies were negative for albuminuria, and he has not displayed edema secondary to his pyelonephritis on any occasion. Furthermore, his October 2011 VA examination was negative for any evidence of current renal dysfunction, and his hypertension was not manifest to a degree of at least 40 percent disabling. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Overall, the preponderance of the evidence is against an initial rating in excess of 30 percent effective April 13, 2005. Additionally, as the staged ratings assigned by the RO are appropriate to the time periods in question, the assignment of additional staged ratings is not warranted at this time. See Fenderson, 12 Vet. App. at 119. Entitlement to an extraschedular evaluation will be considered below. In conclusion, the Board finds that the weight of the lay and medical evidence is against a compensable initial rating prior to April 13, 2005, or in excess of 30 percent thereafter for the Veteran's chronic pyelonephritis. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Extraschedular Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. The criteria specifically provide for ratings based on the presence of renal dysfunction, urinary tract infections, and/or voiding dysfunction. See 38 C.F.R. §§ 4.115a, 4.115b. The symptomatology and impairment caused by the Veteran's chronic cystitis and pyelonephritis are contemplated by the pertinent schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on a combination of the symptoms claimed by the Veteran and clinical findings and other evidence of record. In this case, the Veteran has reported burning on urination, kidney pain, occasional urinary tract infections, and occasional catheterizations and drainage secondary to his service-connected genitourinary disabilities. These symptoms are part of or similar to symptoms listed under the pertinent schedular rating criteria for these disorders. Moreover, these disabilities were found by a VA examiner to present no interference with the Veteran's ability to work. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the disabilities on appeal, and referral for consideration of an extraschedular evaluation is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent effective September 15, 1999, 20 percent effective September 16, 2005, and 30 percent effective December 22, 2011, for chronic cystitis is denied. Entitlement to a compensable initial rating prior to April 13, 2005, and in excess of 30 percent thereafter for chronic pyelonephritis is denied. REMAND The Board finds that the issue of service connection for a back disorder must be remanded to obtain an adequate examination that complies with the directives of the June 2012 remand. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, where VA provides the Veteran an examination in a service connection claim the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate examination and medical opinion addresses the appropriate theories of entitlement and provides a supporting rationale for any medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). The Board's June 2012 remand order included instructions for the examiner to specifically discuss a February 2006 letter from Dr. P.M.C., a private physician who stated he has treated the Veteran since 1999. In his statement, Dr. C. opined that the Veteran's current back pain "may be due to his back sprain and degenerative disc disease he had for many years since he was in military service." As the Veteran's representative has noted in his November 2012 statement, the July 2012 examination addendum provided by the VA examiner did not discuss this February 2006 letter. The Board is cognizant that substantial, not complete, compliance with a Board remand is the required standard when determining if the terms of the remand order have been met. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In the present case, the Board cannot conclude there has been substantial compliance with the June 2012 remand order, because a competent medical opinion is required to address the ambiguities of the February 2006 letter from Dr. C. Thus, another remand is required to insure that the terms of the Board's June 2012 remand order are met. Accordingly, the case is REMANDED for the following action: 1. Contact the examiner who provided the July 2012 VA addendum opinion and request the examiner consider and discuss the February 2006 letter from Dr. C. The claims file, including a copy of this REMAND, should be made available to the examiner for proper review of the medical history. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. Moreover, if the examiner from July 2012 is no longer available to respond to this inquiry, then another comparably qualified examiner may answer in his place. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs