Citation Nr: 1618536 Decision Date: 05/09/16 Archive Date: 05/19/16 DOCKET NO. 10-02 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a chronic kidney stone disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to March 1967, from May 1968 to May 1970, from June 1971 to October 1977, and from October 1977 to January 1989. He had additional periods of active duty for training and inactive duty training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The claim of entitlement to service connection for kidney stones had previously been denied by an unappealed January 1990 rating decision. The January 2008 rating decision found that new and material evidence had been received to reopen this claim and denied the claim on the merits. A notice of disagreement was received in January 2009, a statement of the case was issued in November 2009, and a substantive appeal was received in January 2010. In October 2014, the Board reopened this claim and remanded it for additional development, and the case has been returned for further appellate review. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, nephrolithiasis (kidney stones) had its onset during the one year period following the Veteran's discharge from service and such disease manifested to a compensable degree during such period. CONCLUSION OF LAW Nephrolithiasis (kidney stones) was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection The Veteran has claimed entitlement to service connection for kidney stones. As stated in his January 2009 notice of disagreement, the Veteran contends that he first experienced the symptoms of kidney stones during service and first passed a kidney stone in 1967 (within one year of separation from his first period of active duty). In a January 2009 statement accompanying his notice of disagreement, the Veteran asserts that he has experienced multiple episodes of kidney stones since his first period of active service. He also noted that "[t]here is a pattern here of inadequate water supply by the U.S. military," suggesting a link between this and his kidney stones. He also submitted multiple articles providing information on the formation, detection, and treatment of kidney stones. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or when clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2014). The burden is on the Government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003 (holding in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based only on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. at 470-71 (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period); see also Smith v. Shinseki, 24 Vet. App. 40, 48 note 7. Therefore, the presumptions of sound condition at entrance (38 U.S.C.A. §§ 1111, 1132), of aggravation where evidence shows an increase in severity of a pre-existing disease (38 C.F.R. § 3.306), and service incurrence for certain chronic diseases that manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service (38 C.F.R. §§ 3.307, 3.309) are not available with respect to periods of active duty for training or inactive duty training. The Veteran's service treatment records reflect that his genitourinary system was examined and found to be clinically normal at the times of his January 1963 United States Marine Corps enlistment; March 1967 release from active duty; March 1971 United States Army enlistment; October 1978 periodic; February 1986 periodic over 40; and September 1988 retirement examinations. He expressly denied any history of, or current, kidney stones in his March 1971 Army enlistment medical history report. He reported a history of, or current, kidney stones on his February 1986 periodic over 40 and September 1988 retirement medical history reports. He expressly noted on his September 1988 retirement medical history report that he had had kidney stones in July 1973 when stationed at Fort Riley, Kansas. Service treatment records reflect treatment for potentially pertinent symptoms in May 1973, July 1973, November 1974, December 1974, and July 1975. A May 1973 service treatment record reflects that the Veteran sought treatment from urology for a possible history of renal stones and that he was now experiencing episodic right flank pain and proteinuria. It was noted that he was complaining of crystals and blood in the urine. He had pain in both sides and the low back, mostly on the right side. A May 1973 intravenous pyelogram (IVP) revealed a normal urinary tract. There was no calcification in the course of the urinary tract. A May 1973 urine sample was positive for cystine. Another May 1973 urology record notes that the Veteran had right flank pain in 1967 and passed "crystals." It was noted that, since February, he has had aching right posterior back pain with no radiation. Quantitative urine cystine labwork was performed in July 1973. The record does not indicate the results. A November 1974 urology record notes that the Veteran has a history of kidney stones passed in 1967. A December 1974 record notes that he has elevated 24-hour urine cystine in the past, and he has been having right flank pain intermittently since September. A July 1975 record notes that the Veteran has a history of kidney stones in 1967 and 1971 and notes an impression of possible recurrent colitis. On his original service connection claim, dated in February 1989, the Veteran reported having received outpatient treatment for "Kidney Stone IVP" at Fort Riley in May 1973 and December 1973, and for "Kidney Stone Cystine" in July 1973. An August 1989 VA examination report notes that the Veteran passed a stone and had elevated cystine in 1967. He had throbbing discomfort on and off in the left kidney region. Following examination, the VA examiner gave a diagnosis of "[r]esidual, [history of] passing kidney stone ... Neg. exam." A May 1997 record notes that the Veteran had possible kidney stones with microhematuria. Another May 1997 VA medical record notes that the Veteran woke up with right flank pain and that he had passed a kidney stone in 1967. Following examination and testing, a diagnostic impression of "kidney stone - nephrolithiasis" was given. An August 1997 VA medical record notes that the Veteran had right flank pain radiating to his right lower quadrant with nausea and vomiting. An August 1997 excretory urogram notes an impression of partial right renal obstruction, likely secondary to a distal right ureteral stone. A later follow-up appointment notes that the Veteran's right flank pain had subsided. He denied flank pain, hematuria, and dysuria. It was noted that he "did not catch stone pass." The assessment is that the Veteran had a history of renal stones. A June 2006 VA medical record notes that the Veteran complained of left flank pain with intermittent episodes of radiation to the groin, which he describes as passing kidney stones. He reported a long history of kidney stones but denied any hematuria. He denied any nausea, vomiting, fever, or current symptoms. An October 2006 VA medical record notes that the Veteran has had two emergency room visits in the last two months with severe left flank pain. It was noted that CT examinations were performed on both of these occasions and they showed around a one-centimeter pelvic stone, which could be obstructing. He reported that his pain is currently feeling better but that he is still experiencing episodic discomfort. He had severe pain with vomiting a few days ago. Currently, there was no vomiting, no fever, and no recent hematuria, although he had hematuria a few days ago. A December 2006 record notes that the Veteran was treated for kidney stones. July 2006, September 2006, October 2006, January 2007, and March 2007 radiology reports note a stable one-centimeter left renal calculus. The record indicates that the Veteran had kidney stones removed by laser in March 2007, after he unsuccessfully underwent an extracorporeal shock wave lithotripsy (ESWL) in December 2006. A January 2007 VA medical record notes that the Veteran had symptomatically improved since his December 2006 ESWL for a one-centimeter lower pole calculus. It was noted that he has passed some fragments. A kidney, ureter, and spleen examination demonstrated persistent left lower pole calculus. A February 2007 VA medical record notes an impression of nephrolithiasis. It was noted that the Veteran was aware of the signs and symptoms of obstructive renal calculus and knows when he needs to seek immediate attention for that. A July 2007 ultrasound notes an impression of a normal renal ultrasound, without calculus definitely identified. A July 2007 radiology report notes that the previously-noted one-centimeter left renal stone is not visualized. Another July 2007 record notes that the Veteran has had multiple episodes of passing stones, in the 1970s, 1989, and 1996. It was noted that the 1996 episode was the last evidence of stones prior to the large solitary left stone. He was not interested in lifelong medical therapy for stones at this point. An October 2007 VA medical record notes that the Veteran reported occasional left sided "kidney" pain. An impression of urolithiasis was given. A March 2009 VA medical record notes that the Veteran presented at the emergency room with a single episode of sharp flank pain that lasted about 30 seconds. He reported that he has a long history of kidney stones and thinks the pain is similar. The triage note reflects that the Veteran denied any urinary symptoms at this time but had been experiencing this pain for months. Another March 2009 VA medical record notes that the Veteran would be taking Terazosin until April 2009 for kidney stones. It was noted that this medication helps stones pass and that he may increase his dosage if he tolerates the medication without dizziness/lightheadedness. VA medical records reflect that the Veteran underwent surgery in April 2009 to remove a left kidney stone. A July 2009 VA medical record notes that the Veteran has a history of kidney stones. A March 2011 VA medical record notes that the Veteran's last ureteroscopy was three years ago. A CT in August was negative for stones. A renal ultrasound from "today showed no stones or hydro." An April 2012 VA medical record notes that the Veteran's last CT was in August 2010 and showed no stones. It was noted that the Veteran is "doing well and has not had any problems for almost 4 years now." A July 2013 VA medical record notes that the Veteran has had a diagnosis of chronic kidney disease on file since 2006. However, it was noted that the Veteran's creatinine levels were indicating no true kidney disease, so it was removed from the list of problems. A May 2014 record notes that the Veteran had a long history of recurrent kidney stones. The last ureterorenoscopy was in 2009. A CT in 2012 showed no stones. It was noted that the Veteran had had no clinical symptoms of stones the last few years. An "RBUS" showed a possible stone in the upper pole of the left kidney. A June 2014 radiology report shows an impression of nonobstructing left kidney lower pole stone measuring 6 millimeters. An August 2014 record reflects the Veteran sought follow up treatment for recurrent kidney stones. It was noted that he was following up for chronic nephrolithiasis and that a CT scan indicated 4 millimeter renal pelvic stone. To summarize, the Veteran's post-service medical records reflect that he sought treatment for kidney stones on several occasions following service, including multiple times during the course of this appeal. The Veteran underwent a VA examination in February 2015. The examination report reflects review of the claims file and interview and examination of the Veteran. Based on the above, in response to a question asking if the Veteran is or has ever been diagnosed with a kidney condition, the examiner stated that the Veteran had been diagnosed with nephrolithiasis (kidney stones) in 1967. In terms of relevant medical history, the examiner noted that the Veteran has a history of recurrent kidney stones. He reported his first kidney stone was diagnosed in Fall 1967 after his release from active duty. He reported that, when he was on active duty, there was no equipment available to visualize a stone. He reported that his treatment included IV fluid. He reported that he currently has a stone. He had a procedure approximately three years ago to have a stone removed. He denied any current symptoms. The examiner opined that the Veteran's current kidney stone disability was less likely than not incurred in or caused by his in-service illness. Her rationale was that the Veteran's first kidney stone was diagnosed in 1967 prior to entering the military. She stated that the Veteran has had several kidney stones since then. She opined that the military did not cause his kidney stones, nor did it aggravate his kidney stone condition. She ended by stating the following: "Therefore concluding that it is at least as likely as not that the Veteran's kidney stones had its clinical onset during active duty." In response to a request for a medical opinion for aggravation of a condition that existed prior to service, the examiner also opined that the kidney stones, which clearly and unmistakably existed prior to service, were not aggravated beyond their natural progression by an in-service event, injury, or illness. As a rationale, she stated that the Veteran was diagnosed with kidney stones after being released from the military. She noted that kidney stones can reoccur. There is no evidence that suggests the military aggravated the Veteran's kidney stones. She noted that the Veteran continued to have multiple kidney stones after his military career. VA regulations provide that where a veteran served continuously for 90 days or more during a period of war or after December 31, 1946, and specified diseases, such as calculi of the kidney become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). As noted above, the Veteran served on multiple periods of active duty including from March 1963 to March 1967 and from June 1971 to January 1989. As stated in his January 2009 notice of disagreement, the Veteran believes that he first experienced the symptoms of kidney stones during service but first passed a kidney stone in 1967 within a year of his discharge from active duty service. There is no direct medical evidence of the foregoing; however, the Veteran's current assertions are consistent with the evidence contemporaneous to his military service. See, e.g., May 1973 urology record (noting that the Veteran had right flank pain in 1967 and passed "crystals"); November 1974 urology record (noting that the Veteran has a history of kidney stones passed in 1967); July 1975 record (noting that the Veteran has a history of kidney stones in 1967 and 1971). The opinion from the February 2015 VA examiner also suggests that he found the Veteran's report of medical history credible. See February 2015 VA examination report (noting that the Veteran had been diagnosed with nephrolithiasis (kidney stones) in 1967, and that the Veteran's first kidney stone was diagnosed in 1967 prior to entering the military). Resolving reasonable doubt in favor of the Veteran, the Board finds that nephrolithiasis (kidney stones) had its onset during the one year period following the Veteran's discharge from active duty service. Nephrolithiasis is evaluated under Diagnostic Code 7508. See 38 C.F.R. § 4.115b (2015). This code provides that nephrolithiasis should be rated as hydronephrosis, except where there is recurrent stone formation requiring one or more of the following: (1) diet therapy; (2) drug therapy; or (3) invasive or non-invasive procedures more than two times per year. If evaluated under this code, the rating assigned will be 30 percent. Hydronephrosis is evaluated under Diagnostic Code 7509. See 38 C.F.R. § 4.115b (2015). Hydronephrosis warrants a 10 percent rating where there is only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent rating is warranted for frequent attacks of colic, requiring catheter drainage. A 30 percent rating is warranted for frequent attacks of colic with infection (pyonephrosis), kidney function impaired. Severe hydronephrosis is to be rated as renal dysfunction. The lay and medical evidence suggests that the Veteran's nephrolithiasis (kidney stones) manifested to a compensable degree within one year following his separation from active duty service. As all the elements of service connection have been met, the Board finds that presumptive service connection for nephrolithiasis (kidney stones) is warranted. ORDER Service connection for nephrolithiasis (kidney stones) is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs