Citation Nr: 1340846 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 08-12 972A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 10 percent for post-operative and recurrent kidney stones. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from February 1969 to September 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied a rating in excess of 10 percent rating for a kidney disability. The Veteran appealed. This case was previously before the Board in March 2012, at which the matter was Remanded for additional development. The case has now been returned to the Board for further appellate action. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDING OF FACT The Veteran's kidney disorder (recurrent kidney stones) does not result in recurrent stone formation requiring diet therapy, drug therapy, and/or invasive or non-invasive procedures more than two times a year, frequent attacks of colic requiring catheter drainage, or frequent attacks of colic with infection (pyonephrosis) with impaired kidney function. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 10 percent for post-operative and recurrent kidney stones have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.115a, 4.115b including Diagnostic Codes 7508, 7509 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letter dated July 2006. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the October 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements has been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims. Those examinations included a review of the Veteran's claims file, personal interview, and physical examination, which included laboratory testing. The opinions provided in those examinations included supporting rationale. The reports of those examinations are thereby found to be more than adequate. Further, as noted, the matter was Remanded for the purpose of additional development. That development included a request for recent treatment records and obtaining a new VA examination. There has been substantial compliance with the March 2012 Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4 (2013). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history must be considered when assigning disability rating. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is service connected for post-operative and recurrent kidney stones. His nephrolithiasis (kidney stones) is evaluated as 10 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7509. Under Diagnostic Code 7508, nephrolithiasis is rated as hydronephrosis (Diagnostic Code 7509), except when a Veteran has recurrent stone formation requiring one or more of the following: diet therapy; drug therapy; or, invasive or non-invasive procedures more than two times a year, when a 30 percent evaluation is assignable. 38 C.F.R. § 4.115b (2013). When a compensable rating is not available under Diagnostic Code 7508, one should be considered under Diagnostic Code 7509. Under Diagnostic Code 7509, hydronephrosis, when there is only an occasional attack of colic, and there is no infection or need for catheter drainage, will be rated as 10 percent disabling. When there are frequent attacks of colic, requiring catheter drainage, a 20 percent rating is warranted. A 30 percent evaluation is assignable for hydronephrosis with frequent attacks of colic with infection (pyonephrosis), with kidney function impaired. If the disability is severe, it is to be rated as renal dysfunction under 38 C.F.R. § 4.115a. 38 C.F.R. § 4.115b (2013). At a February 2007 VA examination, the examiner noted that the Veteran experienced urinary frequency, voiding 10 times during the day and five times at night; did not experience urinary hesitancy; experienced a decrease in urinary stream; did not have dysuria; did not have urinary incontinence; did not require any appliances; had three urinary tract surgeries (laparotomies in 1978, 1980, and 1986 for nephrolithiasis), but had no residual effects after the surgieries and did not experience impotence as a post-operative complication; did not experience recurrent urinary tract infections; did experience renal colic; did have bladder stones; and did not have acute nephritis. The examiner also reported that the Veteran has been hospitalized for urinary tract disease; that one hospitalization occurred in the last 12 months; that the Veteran did not require catherization; that the Veteran did not have to undergo any urinary drainage procedures; that the Veteran was not on any diet therapy; that the Veteran did have to undergo an invasive procedure once a year - cystoscopy and stent placement; and that the Veteran did not have to undergo any non-invasive procedures. The examiner stated that the Veteran was unable to work as an aircraft mechanic because of the extreme pain and that the disability affected the Veteran's activities of daily living because the pain of a stone passing was very debilitating. The examiner acknowledged that the Veteran did not have to take any medication; was not claiming loss of use of a creative organ; was not claiming erectile dysfunction secondary to another disease; did not receive any treatment for erectile dysfunction; was not on dialysis; and did not have any edema. The Veteran's genital examination was normal, and BMP and UA showed negative findings and normal renal function. The diagnosis was nephrolithiasis. The examiner stated that the Veteran experienced moderate disability since active service and has a history of three surgeries, and that the pain and disability of chronic nephrolithiasis was unequivocal. At an April 2012 VA examination, the examiner noted that the Veteran had been diagnosed with nephrolithiasis. The examiner stated that the Veteran reported passing a kidney stones once every year and a half, with each lasting two-three days, with no pain in-between. The Veteran denied any urinary problems and did not take any medication for his disability. The Veteran did not have any renal dysfunction; did not have hypertension or heart disease due to renal dysfunction; did have kidney stones; had no treatment for recurrent stone formation in the kidney; did have signs or symptoms due to urolithiasis - occasional attacks of colic; did not have a history of recurrent symptomatic urinary tract or kidney infections; did not have a kidney transplant or removal; and did not have any tumors or neoplasms related to his disability. The examiner reported that the Veteran did not have any scars related to his disability; and had no other pertinent physical findings, complications, conditions, signs, or symptoms. The examiner noted that diagnostic laboratory studies performed in November 2011assessing the Veteran's BUN, creatinine, and RBC's/HPF indicated normal results. The examiner related that there were no other significant diagnostic test findings and/or results. The examiner stated that the Veteran's kidney disability did not have an impact on his ability to work; that the Veteran denied any voiding dysfunction; and that the Veteran had small amounts of hematuria only when he passed the stone (per the Veteran's report). The examiner emphasized that the Veteran did not have a voiding dysfunction. A review of the claims file shows hospital records from the Veteran's emergency room visit in June 2006. While there, the Veteran was diagnosed with a kidney stone, acute renal colic, acute nausea and vomiting, and acute hypertensive episode. The Veteran was given IV fluids and pain medication, and released home the same day. The Veteran's claims file contains an October 2006 letter from St. Luke West Hospital stating that the hospital only retains records for 1996 to the present day and that prior records have been destroyed. This letter constitutes a finding of unavailability of records. The Veteran's claims file contains a November 2006 letter from Bethesda Hospital stating that the Veteran's records were no longer available, as the hospital only retains records for ten years and that prior records have been destroyed. This letter constitutes a finding of unavailability of records. In his August 2008 claim for an increased rating, the Veteran recounted the history of his disability, which spanned from 1970/1971 to the present day. He reported passing many kidney stones at home, going to the hospital for emergency treatment several times, being hospitalized at least eight times for the condition, and undergoing at least five surgeries for the disability. The Veteran stated that he lost hundreds of hours of work and thousands of dollars due to his disability. He noted that he had not reported many of the kidney stones episodes to VA, and stated that his disability has increased in both its frequency and severity. In an August 2008 statement, the Veteran's wife stated that she has been married to the Veteran since 1971 and that the Veteran has experienced a kidney disability throughout their marriage. She said that the disability caused the Veteran pain and agony, and that there had been many times when she was afraid that he would die from it. She recalled that the Veteran had passed many stones at home, and that each attack has been more difficult for him to recover from as the years have passed. She reported that she had spent many hospital stays wondering if the Veteran would live, and that his condition only deteriorated with age. In an April 2012 statement, the Veteran reported that his first surgery for his disability occurred in 1978, and that he has had several surgeries and hospitalizations for the condition since then. The Veteran also stated that he has had many kidney stone attacks over the years, and realized that it was easier and less expensive to pass the stones on his own, without seeking medical attention. The Veteran stated that he has collected quite a few stones over the years, but that no one has examined them. The Veteran stated that he passed an average of a kidney stone a year, and that he passed one about three months before writing the statement. Based on the foregoing, the Board finds that the criteria to support a rating greater than the presently assigned 10 percent rating have not been met. The Veteran's kidney disorder (recurrent kidney stones) does not result in recurrent stone formation requiring diet therapy, drug therapy, and/or invasive or non-invasive procedures more than two times a year. Such has simply not been shown. He does not report having stone formation more than twice a year. He instead says that he passes a stone once every year to year-and-a-half. There is likewise no evidence he has invasive or non-invasive procedures for these events. The hospitalization (emergency room visit) in 2006 required only pain medication and the administration of fluids. His last surgical intervention occurred many years prior to the filing of the claim for an increased rating. There is likewise no evidence that the Veteran's recurrent kidney stones requires diet or drug therapy. There is also no evidence that the Veteran's kidney disability results in frequent attacks of colic requiring catheter drainage or frequent attacks of colic with infection (pyonephrosis) with impaired kidney function. The medical record and lay testimony before the Board show that the Veteran had not experienced frequent attacks of colic, requiring drainage. Frequent attacks of colic with infection (pyonephrosis) with impaired kidney function is similarly not documented nor contended. Instead, the Veteran has experienced an occasional attack of colic, and has had no infection or need for catheter drainage. The Board recognizes that the Veteran has endorsed problems with urinary frequency. However, as noted, the VA examiner clearly determined that the Veteran's recurrent kidney stone disorder did not result in voiding dysfunction. It is also notably that urinary frequency is not contemplated under the evaluation for nephrolithiasis or hydronephrosis. A severe case of hydronephrosis, which has not been established, is rated under voiding dysfunction. Again, voiding dysfunction has not been established. As a result, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the Veteran's kidney disability. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's headache disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1) (2013). The symptoms of the Veteran's recurrent kidney stones have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Finally, although the Veteran has submitted evidence of medical disabilities, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He says the act of passing a kidney stone prevents him from working. However, as noted, that occurs only once every year to year-and-a-half. The VA examiner in 2012 also determined that the kidney disorder did not have a negative impact on his ability to work. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An increased rating in excess of 10 percent for the service-connected post-operative and recurrent kidney stones is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs