Citation Nr: 1341441 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-35 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for hypertension. 2. Entitlement to an initial rating higher than 10 percent for kidney stones. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 2001 to June 2009. These matters came to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO granted service connection for hypertension and kidney stones, assigning initial noncompensable ratings, effective June 18, 2009. In a March 2011 rating decision, a Decision Review Officer assigned an initial 10 percent rating for kidney stones, effective June 18, 2009. In December 2012, the Board denied entitlement to higher initial ratings for gastroesophageal reflux disease and migraines; and remanded the hypertension and kidney stone issues for further development. In an April 2013 rating decision, the Appeals Management Center (AMC) assigned a 10 percent rating to hypertension, effective June 18, 2009. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. For the period prior to January 18, 2013, the Veteran's hypertension was manifested by need for medication and occasional diastolic blood pressure of 100; but was not been manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 2. For the period from January 18, 2013, the Veteran's hypertension is manifested by diastolic pressure predominantly 110 or more, but is not manifested by diastolic pressure predominantly 120 or more. 3. Since June 18, 2009, the Veteran's kidney stones have been manifested by recurrent stone formation requiring diet therapy, specifically hydration. CONCLUSIONS OF LAW 1. For the period prior to January 18, 2013, the criteria for entitlement to a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2013). 2. For the period from January 18, 2013, the criteria for entitlement to a disability rating of 20 percent for hypertension have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.104, DC 7101. 3. From June 18, 2009, the criteria for entitlement to a disability rating of 30 percent for kidney stones have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, DC 7509 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The appeal for higher initial ratings for hypertension and kidney stones arises from the Veteran's disagreement with the initial ratings assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, to include substantial compliance with the December 2012 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As instructed in the remand, the AMC obtained VA treatment records and afforded the Veteran current examinations. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and post-service VA treatment records have been associated with the claims folder. The Veteran has not identified and the evidence does not otherwise reflect any other relevant post-service medical treatment. The Veteran was afforded VA examinations in December 2008, November 2010, and April 2013, which assessed the severity of his hypertension and kidney stones. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hypertension The Veteran's hypertension is rated 10 percent disabling pursuant to 38 C.F.R. § 4.104, DC 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Such diagnostic code provides a 60 percent rating if the diastolic pressure is predominantly 130 or more, a 40 percent rating if the diastolic pressure is predominantly 120 or more, a 20 percent rating if the diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more, and a 10 percent rating if the diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. The Board has reviewed the Veteran's service treatment records, the entirety of the Veteran's VA outpatient treatment records, and the December 2008, November 2010, and April 2013 VA examinations pertaining to the severity of his hypertension. The medical evidence of record reflects that the Veteran requires continuous medication for control of hypertension. The Veteran's hypertension is rated 10 percent disabling, as it requires continuous medication for control and at times his diastolic pressure has been 100 or more. For the period from January 18, 2013, the evidence demonstrates that the Veteran's hypertension has been manifested by diastolic pressure that is predominantly 110 or more. Specifically, a January 18, 2013 VA outpatient treatment record reflects blood pressure readings of 150/110 and 140/118. The April 12, 2013 VA examination report reflects blood pressure readings of 142/116, 138/106, and 142/110. As four of five blood readings reflect diastolic pressure of 110 or more, the Board finds that a 20 percent disability rating is warranted from January 18,, 2013. A higher rating is not warranted as the medical evidence does not demonstrated diastolic pressure predominantly 120 or more. Prior to January 18, 2013, no blood pressure readings show diastolic pressure of 110 or more, or systolic pressure of 200 or more. Thus, the Board must conclude that the medical evidence does not demonstrate that the Veteran's hypertension more nearly approximates diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, as contemplated by a 20 percent rating under DC 7101. For this period, while the Veteran's hypertension requires continuous medication for control and his diastolic pressure has measured 100 or more, his diastolic pressure is reflected as less than 110. Thus, a 20 percent rating is not warranted for the period prior to January 18, 2013. Kidney stones The Veteran's service treatment records show findings of kidney stones. The Board has reviewed the Veteran's service treatment records, the entirety of the Veteran's VA outpatient treatment records, and the December 2008, November 2010, and April 2013 VA examinations pertaining to the severity of his kidney stones. The Veteran and his representative have made no specific contentions as to why the initial ratings should be higher. The disability is rated under 38 C.F.R. § 4.115b, DC 7509, pertaining to hydronephrosis. A 10 percent disability rating is warranted when there is only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent evaluation is warranted when there are frequent attacks of colic, requiring catheter drainage. A maximum 30 percent evaluation is for application when there are frequent attacks of colic with infection (pyonephrosis), with impaired kidney function. If hydronephrosis is severe, it is rated as renal dysfunction. 38 C.F.R. § 4.115b, DC 7509. Under DC 7508, pertaining to nephrolithiasis, this is rated as hydronephrosis except when there are recurring stone formations that require one or more of the following: diet therapy, drug therapy, and/or invasive or non-invasive procedures more than 2 times a year; in which case a 30 percent evaluation will be assigned. 38 C.F.R. § 4.115b, DC 7508. The evidence shows that the kidney stone condition is manifested by occasional flank and abdominal pain and passing of kidney stones. The evidence does not reflect that as a result of his kidney stones he experiences frequent attacks of colic, requiring catheter drainage. The medical evidence does not reflect that catheter drainage has been conducted at any time as a result of his kidney stones. Bilateral nephrolithiasis has been diagnosed. Specifically, the December 2010 VA examination report reflects that recent CT of the abdomen revealed bilateral nephrolithiasis with left renal pelvis stone of 6 millimeters with no hydronephrosis. Moreover, the April 2013 VA examination report reflects the examiner's finding that the Veteran experiences recurrent stone formation with diet therapy of hydration, 3.8 liters of per day. The prior VA examination reports and VA treatment records are silent as to whether his kidney stones required diet therapy prior to April 2013. The VA treatment records do reflect that he passed a kidney stone in June 2011 and it was provided to VA for pathological analysis. In light of the finding by the April 2013 VA examiner that the Veteran's kidney stones condition requires diet therapy of hydration and affording the Veteran the benefit of the doubt, the Board finds that a 30 percent rating is warranted for the kidney stones from June 18, 2009, the date service connection was established. A 30 percent rating constitutes the maximum assignable rating per DC 7508. There are no other diagnostic criteria pertaining to the genitourinary system that could provide the basis for a higher rating. Extraschedular Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular criteria for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected hypertension and kidney stones. The symptoms associated with his hypertension and kidney stones are specifically contemplated by the rating criteria under DCs 7101 and 7509/7508. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). Total Disability Rating Based on Individual Unemployability (TDIU) The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The evidence reflects that the Veteran has reportedly been gainfully employed in full time employment as a mechanic, security guard, and pizza deliveryman throughout the appeal period. As there is no evidence of unemployability, a claim for a TDIU under Roberson and Rice is not raised. Jackson. ORDER For the period prior to January 18, 2013, entitlement to a disability rating in excess of 10 percent for hypertension is denied. For the period from January 18, 2013, entitlement to a disability rating of 20 percent for hypertension is granted. For the period from June 18, 2009, entitlement to a disability rating of 30 percent for kidney stones is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs