Citation Nr: 1636417 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 09-06 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for renal lithiasis, status post lithotripsy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from September 1996 to May 2002. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a May 2007 rating decision of the VA Regional Office in St. Petersburg, Florida that denied a compensable evaluation for renal lithiasis (kidney stones). The case was remanded for further development by Board decisions in January 2013 and August 2015. During the pendency of the appeal, by rating decision in April 2016, the zero percent disability rating for renal lithiasis was increased to 10 percent, effective from the date of the claim received on March 17, 2006. FINDING OF FACT Renal lithiasis is manifested by no more than an occasional attack of colic without evidence of infection and without the requirement of catheter drainage. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for renal lithiasis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.10, 4.115b, Diagnostic Codes 7508-7509 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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) (2015). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claim for a higher rating for renal lithiasis. There is no issue as to providing an appropriate application form or the completeness of the application. VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete the claim in July 2006 and thereafter. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence to substantiate the claim and affording VA examinations that are determined to be adequate for adjudication purposes. The examinations, along with the remainder of the evidence provide sufficient information and findings to rate the Veteran's disability under the appropriate diagnostic criteria. The appellant was scheduled for a personal hearing in September 2011, but cancelled his appearance. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.38 C.F.R. § 3.159. The claim is ready to be considered on the merits. Pertinent law and regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. § Part 4 (2015). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life and is based, as far as practicable, on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The Veteran is in receipt of a 10 percent disability rating for renal lithiasis under 38 C.F.R. § 4.11b, Diagnostic Code 7508, rated by analogy to hydronephrosis. See 38 C.F.R. § 4.20, § 4.11b, Diagnostic Code 7509 (2015). A 10 percent evaluation is warranted for hydronephrosis where there is only an occasional attack of colic without infection and without requiring catheter drainage. A 20 percent disability rating is indicated for frequent attacks of colic requiring catheter drainage. A 30 percent disability rating is assigned where there are frequent attacks of colic with infection and impaired kidney function. If hydronephrosis is severe, it is rated as renal dysfunction. 38 C.F.R. § 4.11b, Diagnostic Code 7509. Factual Background and Legal Analysis A claim for an increased rating for kidney stones was received in June 2006. The appellant was afforded a VA examination in August 2006. It was noted that he had had a lithotripsy while on active duty. He stated since his release from service in 2002, he had had one attack of kidney stones earlier in March of the current year associated with pain in trying to pass the stone. He related that this had been the third episode of such during his life. The appellant was reported to be currently asymptomatic with no flank tenderness. On VA examination in March 2013, the examiner indicated that pertinent history was reviewed and stated that since March 2006, there were no findings of kidney stones. It was noted that the Veteran was followed for multiple health issues on a regular basis but had no complaints or findings of kidney stones. The examiner related no diagnostic studies were currently indicated because there were no areas of concern relating to kidney stones. It was reported that a urinalysis was negative. There was no evidence of renal dysfunction. Following examination, the assessment was service-connected right kidney stone, resolved with normal objective findings. Subsequently received were records from Sacred Heart Hospital dated in September 2015 showing that the Veteran presented to the emergency room with complaints of hematuria since that morning. It was noted that he was on Coumadin but had not taken his last dosage. Following diagnostic studies, the primary diagnosis was renal stone. The Veteran was placed on medication, passed the stone and was discharged the following day ambulating without assistance. The appellant most recent underwent a VA genitourinary examination in March 2016 for kidney stones. He stated that he thought he might have passed two to three stones at home and related that he normally passed stones on his own, possibly one between 2013 and 2014. He reported drinking a lot of water and using a cranberry supplement if he had pain. The examiner recited pertinent history dating back to 2002. It was noted that the Veteran had had treatment for recurrent kidney stone formation but did not take continuous medication for the condition and had no renal dysfunction. The average number of times per year of invasive or non-invasive procedures required to remedy the condition was zero to one. The appellant's condition was reported to be characterized by occasional attacks of colic. There was no history of recurrent symptomatic urinary tract or kidney infections. It was noted that there were no other pertinent physical findings, complications, signs or symptoms related to the condition and no associated scars. It was reported that laboratory studies in February 2016 were normal. The examiner stated that the Veteran's kidney condition did not impact his ability to work. In the remarks following examination, the assessment was renal lithiasis, intermittent stones, non-obstructing, and no functional impairment. In view of the above, the Board finds that the evidence does not demonstrate that the Veteran meets the criteria for a rating in excess of 10 percent for renal stones. As indicated above, in order to warrant the next higher disability rating of 20 percent under Diagnostic Code 7509, the evidence must show frequent attacks of colic requiring catheter drainage. The record reflects that although the appellant was hospitalized in September 2015 for a renal calculus, and reports that he occasionally passes stones on his own, the evidence does not indicate a history of recurrent stones that can reasonably be categorized as frequent attacks of colic. When examined for VA compensation and pension purposes in March 2016, the VA examiner stated that treatment for kidney stones was zero to one time per year. Additionally, it was found that the appellant had only occasional attacks of colic. The extensive VA outpatient evidence of record does not demonstrate frequent episodes of colic requiring catheter drainage, kidney infection or any other pertinent symptoms which a higher disability evaluation might be considered. The evidence does not indicate that the Veteran has recurrent stone formation requiring diet therapy, drug therapy, or invasive or non-invasive procedures more than two times per year pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7508. The Board finds that there are no other applicable diagnostic criteria pertaining to the genitourinary system that provides for a higher rating for the service-connected renal lithiasis. Accordingly, the Board concludes that the current 10 percent disability evaluation adequately contemplates the degree of impairment associated with the service-connected kidney stones and that a basis for a rating in excess of 10 percent is not demonstrated. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for a rating in excess of 10 percent, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (2015)). The Board has also considered the application of 38 C.F.R. § 3.321 (b)(1) for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular criteria for service-connected disability are inadequate. If the criteria reasonably depict the claimant's disability level and symptomatology, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria adequately describe the Veteran's symptoms related to renal lithiasis which is characterized by no more than an occasional attack of colic without infection and not requiring catheter drainage. In addition, the rating criteria provide for ratings higher than that assigned based on more significant functional impairment. Therefore, the rating criteria clearly contemplate the Veteran's disability picture and the threshold factor for extraschedular consideration under step one of Thun has not been met. The Board further notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with the service-connected disabilities. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet.App. 181 (1998), there is no additional impairment that has not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected renal lithiasis under the provisions of 38 C.F.R. § 3.321 (b)(1) are not been met. Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218 (1995); Thun v. Peake, 22 Vet.App. 111 (2008). ORDER An evaluation in excess of 10 percent for renal lithiasis is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs