Citation Nr: 1801456 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-15 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable rating for nephrolithiasis. 2. Entitlement to an initial compensable rating for a right thumb injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1989 to July 1989, November 1996 to March 1997, November 2001 to November 2002, and April 2009 to May 2010, to include service in Iraq and Afghanistan. The Veteran was awarded a Bronze Star, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision from the Department of Veterans (VA) Regional Office (RO) in Denver, Colorado. This appeal was previously remanded by the Board in May 2017 and is now ready for adjudication. FINDINGS OF FACT 1. The Veteran has not experienced kidney stones or episodes of hydronephrosis during the appeal period. 2. The Veteran's right thumb injury has been characterized by painful flare-ups during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for nephrolithiasis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7508 (2017). 2. The criteria for a 10 percent rating for a right thumb injury, but no more, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.71a, DC 5228 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records as well as VA examinations are associated with the claims file. This appeal was remanded by the Board in May 2017 in order to obtain additional records as well as for the Veteran to undergo a VA examination to evaluate his disabilities on appeal. See 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). In June 2017, VA obtained additional records and the Veteran underwent VA examinations for his disabilities. Thus, the Board is now satisfied there has been substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, VA has met its duty to assist with respect to obtaining pertinent evidence. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017). Nephrolithiasis In May 2011, the Veteran was granted service connection for nephrolithiasis with a noncompensable rating. See 38 C.F.R. § 4.115b, DC 7508. However, he has since disagreed with his rating. The Board finds that the Veteran is not entitled to a compensable rating for his nephrolithiasis. Under 38 C.F.R. § 4.115b, DC 7508, nephrolithiasis must be rated as hydronephrosis except for recurrent stone formation requiring diet therapy, drug therapy, or procedures more than two times per year. In this instance, he was diagnosed with kidney stones in April 2010. However, there has been no evidence of recurrence since his initial bout of nephrolithiasis in spring 2010. Therefore, the Board will consider the Veteran's condition under the rating criteria for hydronephrosis. See 38 C.F.R. § 4.115b, DC 7509. Under DC 7509, a 10 percent disability rating is assigned for hydronephrosis manifested by only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent disability rating is warranted where there are frequent attacks of colic and catheter drainage is required. A maximum schedular 30 percent disability rating is assigned where there are frequent attacks of colic with infection and impaired kidney function. Severe hydronephrosis is to be rated based on renal dysfunction. 38 C.F.R. § 4.115b, DC 7509. A 10 percent rating under DC 7509 requires the Veteran to have an occasional attack of colic. However, the Veteran's kidney stones and resulting colic have not recurred since the initial occasion in 2010. During the Veteran's May 2013 VA examination, he reported the onset of left flank pain in Afghanistan of a 4 to 5 hour duration, which occurred every 4 to 5 days. A CT scan revealed a kidney stone which he ultimately passed at home. As of the date of the May 2013 examination, there had been no recurrence. In another VA examination conducted in June 2017, the VA examiner similarly noted that the Veteran only had one incident of kidney stones in 2010. However, since then he has been careful not to get dehydrated and has had no renal dysfunction, which includes no attacks of colic. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017). On review of the medical and lay evidence of record, the Board finds that the preponderance of the evidence is against awarding a compensable rating for nephrolithiasis. Residuals of a Right Thumb Injury In May 2011, the Veteran was granted service connection for a right thumb ligament tear status-post surgery with residuals with a noncompensable rating. See 38 C.F.R. § 4.71a, DC 5228. However, he has since disagreed with his rating. For the reasons described below, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's thumb disability. Initially, the Board notes that the Veteran could also possibly be rated under DC 5225, which addresses ankylosis of the thumb. However, the May 2013 and June 2017 VA examiners both explicitly denied that the Veteran suffers from ankylosis. Therefore, the Board finds that DC 5228, which considers the limitation of motion of the thumb, is the most appropriate diagnostic code. Under 38 C.F.R. § 4.71a, DC 5228, a gap of less than one inch between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, is noncompensable. A gap of 1 to 2 inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, is rated at 10 percent. 38 C.F.R. § 4.71a, DC 5228. A 10 percent rating under DC 5228 requires the Veteran to have limitation of motion of his thumb. However, during the Veteran's May 2013 VA examination, he exhibited no limitation of motion. Additionally, during his June 2017 VA examination, he exhibited no abnormal gap between his thumb pad and fingers. Nevertheless, the Board recognizes that during the period on appeal, the Veteran's disorder was characterized by pain. Specifically, during his May 2013 VA examination, he stated that he suffered from painful flare-ups when using his hand drill for a certain amount of time. The examiner noted that there was pain without weakness. During his June 2017 VA examination, the Veteran reported pain with repetitive use and during chores like shoveling, raking, and hammering. The plain language of 38 C.F.R. § 4.59 indicates that it is the intention of the schedular rating criteria to recognize painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See Burton v. Shinseki, 25 Vet. App. 1 (2011). As the Veteran's thumb disability is rated under a diagnostic code containing a 10 percent rating and he has clearly exhibited painful motion, the Board finds that a 10 percent rating for the Veteran's thumb disability is warranted. See 38 C.F.R. § 4.59. When considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The additional functional loss caused by these factors is taken into account for his range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). In fact, it was the recognition of the Veteran's painful thumb that led the Board to assign him a 10 percent rating. Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the ratings he currently receives. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Ultimately, the probative evidence of record shows that the Veteran's right thumb symptoms warrant a 10 percent rating, but no higher. This rating is based on the medical and lay testimony presented, as well as the Veteran's descriptions of painful motion in the left thumb. ORDER A compensable rating for nephrolithiasis is denied. A 10 percent rating for a right thumb injury, but no more, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs