Citation Nr: 1334345 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-48 048 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar, currently assigned a 20 percent evaluation. 2. Entitlement to an effective date prior to October 19, 2009 for the assignment of the current rating for left ureteral stone, status post cystotomy and ureteral lithotomy, with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar. ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran had active service from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Houston, Texas, Regional Office (RO), which increased the evaluation for left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar, from zero percent to 20 percent, effective October 19, 2009. The Veteran perfected a timely appeal to the rating as well as the effective date assigned. In December 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional evidentiary development and consideration. The AMC completed the requested development and issued supplemental statements of the case (SSOCs) in August 2012 and October 2012. Review of the record reflects substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's service-connected genitourinary disability includes postoperative, suprapubic cystotomy. 2. By an April 1996 decision, the Board denied the Veteran's claim of entitlement to a compensable rating for a left ureteral calculus. The Veteran appealed the April 1996 Board decision to the United States Court of Appeals for Veterans Claims (Court). By an October 1997 Order, the Court dismissed the Veteran's claim. 3. In a statement in support of claim (VA Form 21-4138), received at the RO on October 19, 2009, the Veteran requested an increased rating for the service-connected left ureteral stone, post-operative. 4. It is not factually ascertainable that an increase in disability had occurred within one year prior to October 19, 2009. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7516 (2013). 2. The criteria for an award of an effective date prior to October 19, 2009, for the assignment of a 100 percent disability rating for left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or SSOC. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in December 2009 from the RO to the Veteran which was issued prior to the RO decision in April 2010. That letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify with respect to the issues decided herein. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claims decided herein has been obtained and associated with the claims file, and that he has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Veteran has been afforded a VA examination on the rating issue addressed herein. The examination was conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, and provided information necessary to apply the pertinent rating criteria and to decide the rating issue addressed in this decision. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. Therefore, no useful purpose would be served in remanding the issues decided herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background The service treatment records indicate that the Veteran was seen for evaluation of gross total painless hematuria in October 1965; a left ureteral calculus was disclosed on examination. A follow up evaluation in February 1966 revealed that it had not passed. Therefore, in April 1966, the Veteran underwent a suprapubic cystotomy and ureteral lithotomy. At the time of his discharge examination, a urine culture revealed an infection which was treated. The diagnoses were calculus in ureter, left lower one third and cystitis; treated and improved. By a rating action in October 1966, the RO granted service connection for left ureteral stone, post-operative, and assigned a 10 percent disability rating, effective April 16, 1966. On the occasion of an initial VA examination in March 1967, the Veteran indicated that he had had nourological complaints since his hospital discharge in 1966. A KUB revealed no abnormalities in the soft tissue structures and there were no shadows suggesting calculi in the genital urinary tract. The pertinent diagnosis was history of left ureteral calculus removed by open surgery with reimplantation of the left ureter. It was noted that the Veteran was asymptomatic at the time of the examination. By a rating action in April 1967, the rating for left ureteral stone, post-operative was reduced from 10 percent to zero percent, effective July 1, 1967. By letter dated April 20, 1967, the Veteran was informed of the reduction of the award and of appellate rights. He did not appeal that decision. In a statement in support of claim (VA Form 21-4138), dated June 8, 1990, the Veteran sought to establish a claim for an increased rating for his disability. The Veteran maintained that the condition had worsened following the surgery to remove the stones as evidenced by frequent and painful urination. The Veteran also reported that, as a result of his disability, he is required to remain near a restroom and his urine has a very bad odor. Submitted in support of the claim was a VA surgical examination report, dated in March 1991, indicating that the Veteran had a gradual onset of urgency especially after drinking a large amount of water and even more so when drinking beer, followed by the sensation of inadequate emptying of his bladder and post voiding dribbling, plus nocturia times four which had gradually worsened. On examination, the abdomen had an 8 cm. long lower midline operative scar from the previous cystotomy for stone removal, slightly umbilicated in two points, but otherwise well-healed yet pruritic on examination. The abdomen was otherwise free of tenderness, including the costovertebral angles. There was no palpable mass or organ, no guarding or rebound, and peristalsis was normal throughout. The pertinent diagnosis was status post extraction of left renal stone by cystotomy without residual disability. A hearing officer's decision in October 1991 denied the claim for a compensable rating for the postoperative residuals of the left ureteral stone removal as no residual disability was shown on the current VA examination. The Veteran was afforded another VA examination in March 1995. It was noted that the Veteran had had no symptoms. The abdomen was reported to be slightly obese. There was an 8-cm. vertical linear scar above the symphysis which was well-healed. It was nontender. Genatalia were normal. Prostate was normal in size, shape and consistency. No nodules were palpable. The prostate was nontender. The diagnosis was left ureteral calculus removed by open surgery with essentially normal postoperative course. There was no history of pyonephrosis, no history of impairment of kidney function, and no history of recurrent stone formation. He does not require any specific diet or drug therapy. There was no indication for any invasive procedures and no indication for catheter insertion. An IVP was also performed which revealed a small postvoid residual, otherwise it was negative. The ureters were of normal course and caliber bilaterally. No filling defects, hydronephrosis or other evidence of obstruction was seen. Following voiding, a small post void residual remained. The bladder was otherwise unremarkable. An April 1995 rating action confirmed the previously assigned zero percent rating for left ureteral calculus. The Veteran perfected a timely appeal. In April 1996, the Board issued a decision which denied the Veteran's claim for a compensable rating for a left ureteral calculus. The Veteran appealed the April 1996 Board decision to the Court. By an October 1997 Order, the Court dismissed the Veteran's claim. The Veteran's claim for an increased rating for his left ureteral stone, post-operative with suprapubic scar (VA Form 21-4138) was received at the RO on October 19, 2009. The Veteran indicated that he was experiencing chronic painful urination. He also reported blood in his urine and periodic urinary infections. The Veteran maintained that he has had these problems ever since his bladder surgery in service in 1965. The Veteran was afforded a VA examination in January 2010. At that time, the Veteran reported urinating 4 times during the day at intervals of hours; during the night, he urinates 4 times at intervals of 2 hours. The Veteran indicated that he has problems starting urination and the urine flow is weak, hesitant, with decreased force and recurrent infection of the urinary tract. It was noted that the Veteran does have urinary incontinence but he does not require a pad or any absorbent material. He does not require an appliance. It was also reported that he has recurrent urinary tract infections. He had no weakness, fatigue, loss of appetite, weight loss, weight gain, anorexia, limitation of exertion, renal colic or bladder stones with pain. He does not require any procedures for his genitourinary problem. There was no hospitalization during the last 12 months. He was not on dialysis regularly. The Veteran indicated that he avoids long drives due to his urinary condition. He also avoids going to places where there is no rest room. On examination, there was a scar precisely located suprapubic; it was a linear scar. The entire scar measured 1.5 cm by 0.1 cm. The scar was not painful on examination. There was no skin breakdown. This was a superficial scar with no underlying tissue damage. Inflammation was absent. Edema was absent. There was no keloid formation. The scar was not disfiguring. The scar does not limit the Veteran's motion. There was no limitation of function due to the scar. Examination of the abdomen revealed no striae on the abdominal wall, no distention of superficial veins, no ostomy, no tenderness to palpation, no splenomegaly, no ascites, no liver enlargement, and no aortic aneurysm. No kidney or urinary tract fistula was noted on the examination. The diagnosis was changed to ureteral stone status post cystotomy and ureteral lithotomy with reimplantation of the left ureter with recurrent urinary tract infection, urinary retention with inadequate emptying of bladder, suprapubic scar status post-surgery for the ureteral stone. In an addendum to the above examination report, dated January 29, 2010, a VA examiner stated that the VA medical records from April 22, 1966 indicates that the basket manipulation for removal of calculus was unsuccessful and he ended up getting a suprapubic cystotomy, ureterolithotomy left, lower one third ureterocystostomy left, with reimplantation of the ureter. The examiner noted that the Veteran has been having these voiding symptoms ever since then. By a rating action in April 2010, the RO recharacterized the Veteran's service-connected genitourinary disability as left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar, and increased the evaluation from zero percent to 20 percent, effective October 19, 2009. The Veteran perfected a timely appeal. Received in February 2012 were VA outpatient treatment reports dated from March 1995 to July 2006. During a clinical visit in September 1998, the Veteran indicated that he now had frequency and urgency although he voids well with a good stream and force; he stated that he had had no hematuria, and had never been in urinary retention. III. Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). The provisions of 38 C.F.R. § 4.1 require that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. The regulation at 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the Veteran's working or seeking work. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is to be assigned. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern although the possibility of staged ratings must be considered. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. The rating schedule provides descriptions of various levels of disability in each of these symptom areas. Where diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a. The Veteran's service-connected genitourinary disability has been rated under Diagnostic Codes 7510-7512. Under Diagnostic Code 7510 ureterolithiasis should be rated as hydronephrosis, except for recurrent stone formation requiring one or more of the following: (1) diet therapy; (2) drug therapy; (3) invasive or non-invasive procedures more than two times/year. If rated under Diagnostic Code 7510, the rating assigned to the disability is 30 percent. 38 C.F.R. § 4.115b. Diagnostic Code 7512 provides that chronic cystitis, including interstitial and all etiologies, infections, and non-infections are rated as a voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7512. Despite the provisions of these diagnostic codes, the Board has considered other potentially applicable diagnostic codes that may provide for a higher evaluation. In this regard, Diagnostic Code 7516 refers to fistula of the bladder, which is to be rated as voiding dysfunction or urinary tract infection, whichever is predominant. Significantly, the diagnostic code also expressly lists that "postoperative, suprapubic cystotomy" is to be evaluated as 100 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7516. In issuing the April 2010 rating decision, the RO recharacterized the Veteran's service-connected genitourinary disability to "left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar." Thus, service connection is specifically in effect for the disability set forth in Diagnostic Code 7516 although worded slightly differently. The January 2010 VA examiner considered this to be the correct diagnosis and the Veteran's service treatment records support the diagnosis. Thus, the Board finds that the Veteran's service-connected genitourinary disability includes postoperative, suprapubic cystotomy. Diagnostic Code 7516 mandates that a 100 percent rating be assigned for "postoperative, suprapubic cystotomy." Unlike other disabilities, for example malignant neoplasms of the genitourinary system under Diagnostic Code 7528, there are no provisions for rating a change in evaluation of a suprapubic cystotomy based on a post-surgery examination. Instead, the Diagnostic Code 7516 clearly requires a 100 percent disability rating for postoperative, suprapubic cystotomy. Accordingly, the Board concludes that a rating in excess of 20 percent is warranted for the Veteran's service-connected genitourinary disability. That is, a 100 percent rating is warranted throughout the entire rating period on appeal. IV. Effective Date The Veteran essentially contends that he is entitled to an effective date earlier than October 19, 2009 for the assignment of the disability rating for his service-connected left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar. Unless specifically provided in 38 U.S.C.A. § 5100 et seq., the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In such cases, the Board must determine under the evidence of record the earliest date that the increased rating was ascertainable. Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98, 63 Fed. Reg. 56705 (1998). In addition, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a Veteran or the Veteran's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2013). Under 38 C.F.R. § 3.157(a) (2013), a report of examination or hospitalization will be accepted as an informal claim for increase. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the one-year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). For the reasons discussed below, the Board finds that the Veteran is not entitled to an effective date earlier than October 19, 2009, for the assignment of the 100 percent rating for his left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar. As noted above, in a decision issued in April 1996, the Board denied the Veteran's claim of entitlement to a compensable evaluation for a left ureteral calculus. The April 1996 Board decision is final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). Additionally, the Court dismissed the Veteran's claim in an October 1997 Order when he appealed the Board's decision to the Court. Therefore, the effective date is not earlier than the Board's final decision from April 1996. After the April 1996 Board decision, no communication was received from the Veteran or any authorized individual that may be construed as a claim for an increased rating for the left ureteral stone, postoperative until October 19, 2009. On that date, VA received a statement in support of claim, in which the Veteran stated that he was experiencing chronic painful urination. He also reported blood in his urine and periodic urinary infections. The Veteran maintained that he has had these problems ever since his bladder surgery in service in 1965. The Veteran had submitted other statements and evidence, but the submissions pertained to claims regarding benign prostatic hypertrophy and chronic prostatitis, not to an increased rating claim. As such, October 19, 2009 is the date that the Veteran's informal claim for increased rating for a left ureteral stone, postoperative was received. See 38 C.F.R. § 3.155(a). Additionally, there was no report of VA examination or hospitalization that meets the requirements for a claim under 38 C.F.R. § 3.157. See Massie v. Shinseki, 724 F.3d 1325 (Fed. Cir. 2013) (the report of examination must identify a specific, particular examination to qualify as an informal claim for increased benefits, and it is must indicate that the veteran's disability has worsened). The Board will now consider whether an effective date earlier than the date of claim. As noted previously, the effective date of any increase may precede the date of the receipt of the claim, if it was factually ascertainable that an increase in disability had occurred during the preceding year, provided that the application was received within one year after such date. Therefore, the Board must review the evidence of record to determine whether it is factually ascertainable that an increase in disability had occurred within the one-year period prior to October 19, 2009. See 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. at 126 (1997). As the Veteran's claim for an increased rating for status post left ureteral stone was received on October 19, 2009, an effective date as early as October 19, 2008 could be granted if it were factually ascertainable that the increase in disability had occurred within that year. The Board does not find in the evidence that the increase in disability took place in the one-year look back period for assigning the effective date. The evidence does not show that the increase in disability to 100 percent occurred between October 19, 2008, and October 19, 2009, which is necessary for that provision to apply. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Board notes that the Veteran has not raised a request for revision of a prior decision on the basis of clear and unmistakable error (CUE). Given the finality of the Board's April 1996 decision and the procedural history leading to the October 19, 2009 claim for increase, only a successful CUE request can result in an earlier effective date. See, e.g., Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). In light of the above, an effective date prior to October 19, 2009, for the assignment of a 100 percent rating for left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar, is not warranted. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As the preponderance of the evidence is against the appeal for an earlier effective date, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53 (1990). ORDER A 100 percent disability rating for left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar, is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an effective date earlier than October 19, 2009, for the assignment of a 100 percent rating for left ureteral stone, status post cystotomy and ureteral lithotomy with recurrent infection, urinary retention and inadequate emptying of bladder, with suprapubic scar, is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs