Citation Nr: 1801528	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-10 342	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to an initial evaluation in excess of 10 percent for nephrolithiasis.

2. Entitlement to an initial compensable evaluation for service-connected epididymitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. C. King, Associate Counsel



INTRODUCTION

The Veteran had honorable active duty service in the United States Navy from April 1987 to December 1990. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2010 rating decision of the Los Angeles Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for nephrolithiasis, claimed as kidney stone condition with an evaluation of 0 percent effective October 30, 2009. The same decision granted service connection for epididymitis, claimed as testicles condition with an evaluation of 0 percent effective October 30, 2009, and denied nonservice connected pension. The Veteran appealed the initial evaluations assigned for the service connected disabilities. The Veteran also appealed a denial of nonservice-connected pension; however, that issue has been resolved by a grant of the benefits sought and is accordingly not considered to be in appellate status and before the Board at this time. 

The RO issued another rating decision in January 2013, increasing the disability rating for nephrolithiasis to 10 percent, effective October 30, 2009, and the RO issued a rating decision in February 2014, granting special monthly compensation (SMC) benefits for the loss of use of a creative organ from October 30, 2009. The Veteran has continued the appeal, requesting a higher disability rating on the service connected disabilities. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). 

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).





FINDINGS OF FACT

1. Since October 30, 2009, the Veteran's nephrolithiasis was manifested by no worse than an occasional attack of colic.

2. Since October 30, 2009, the Veteran's epididymitis has best approximated a urinary tract infection requiring intermittent intensive management. 


CONCLUSIONS OF LAW

1. The criteria for an initial evaluation in excess of 10 percent for the Veteran's nephrolithiasis from October 30, 2009, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 3.102, 4.115a, 4.115b, Diagnostic Codes 7508, 7509, 7510 (2017).

2. The criteria for an initial evaluation of 10 percent, but no higher, for epididymitis from October 30, 2009, are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 3.102, 4.115a, 4.115b, Diagnostic Codes 7523, 7525 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Assist and Notify

The Veteran has not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes (DC) identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximate the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged"ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board's analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). 

A. Evaluation of Nephrolithiasis

The Veteran's kidney stone condition is currently assigned an initial 10 percent evaluation from October 30, 2009, under 38 C.F.R. §4.115b, DC 7508.

Under either DC 7508, nephrolistiasis or DC 7510, ureterolithiasis, a 30 percent evaluation is warranted if there is recurrent kidney stone formation requiring (1) diet therapy, (2) drug therapy, and/or (3) invasive or non-invasive procedures more than two times per year. Otherwise, the diagnostic codes instruct the evaluation to occur under DC 7509. 38 C.F.R. § 4.115b, DC 7508, 7509, 7510.

Under DC 7509, a 10 percent evaluation is assigned when there is only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent evaluation is contemplated for frequent attacks of colic, requiring catheter drainage. A 30 percent evaluation is warranted for frequent attacks of colic with infection (pyonephrosis), kidney function impaired. Severe hydronephrosis is to be rated as renal dysfunction. 38 C.F.R. § 4.115b, DC 7509; see also 38 C.F.R. § 4.115a (setting forth the criteria for rating renal dysfunction from 0 to 100 percent).

In conjunction with his October 2009 claim for service connection, the Veteran was afforded a May 2010 VA examination, which confirmed a diagnosis of nephrolithiasis. The examiner noted the Veteran reported urinating 6 times a day, with no problems urinating. No incontinence was noted, but loss of appetite and limit of exertion were noted as reported. The Veteran was noted as reporting no weakness, fatigue, weight loss, weight gain, anorexia, recurrent urinary tract infections, renal colic or bladder stones with pain. The examiner noted findings of tenderness to palpation of the abdomen, and mild tenderness to palpation of the right flank. The examiner concluded that the kidney stone condition was most likely caused by or a result of the nephrolithiasis noted in military service.

A June 2011 VA examination was conducted for nephrolithiasis. On examination the diagnosis of nephrolithiasis was confirmed, and subjective factors of occasional flank pain and objective factors of occasional flank tenderness were noted. The Veteran reported hesitancy and difficulty with starting a stream, but no dysuria was noted, nor was any leakage or discharge or straining to start. The Veteran was noted as having reported extreme pain on the left side of back. The Veteran also reported a history of acute nephritis (inflammation of the kidneys). The examiner noted the Veteran having urinalysis that showed trace ketone levels, and gave the diagnosis of ketonuria, but did not specifically link this diagnosis to nephrolithiasis. The examiner noted normal seminal vesicle and epididymis, and noted a soft and enlarged prostate; a condition that is not currently service-connected. The examiner indicated that enlarged prostate (BPH) and epididymitis could cause the hesitancy in starting a stream, but did not link this symptom to the diagnosis of nephrolithiasis. 

A July 2011 VA treatment note indicates that the Veteran reported a stone in his urine as of June 2011. A September 2011 VA treatment note indicates the Veteran reported having passed a kidney stone two months prior, and that he was asymptomatic. 

A March 2016 VA examination confirmed a diagnosis of nephrolithiasis (kidney stones). The Veteran was noted to have reported a last episode of kidney stone in year 2008 involving a 6 mm obstructive uretal stone. The Veteran passed the stone spontaneously and has been kidney stone free to the current date. The Veteran reported trying to stay well hydrated to prevent recurrences. The Veteran was noted not to require medication, not to have renal dysfunction, but was noted to have had uretal calculi (urolithiasis) with occasional attacks of colic. The Veteran was noted to not have any history of recurrent symptomatic urinary tract or kidney infections, to not have had a kidney transplant or removal, to not have any neoplasm or metastases related to the nephrolithiasis, and to not have symptoms, scars, complications, conditions, signs, or other pertinent physical findings related to the diagnosis. The examiner noted that 2016 BUN and EGFR laboratory tests returned normal results, and 2016 urinalysis testing returned normal results. The examiner noted that there was diagnostic testing from 2008 confirming a 6 mm stone. The examiner noted that the kidney condition did not impact the Veteran's ability to work. 

The evidence of record does not indicate that the Veteran has had diet or drug therapy, or that he has had invasive or non-invasive procedures in excess of two times in any given year. As such, a rating of 30 percent under DC 7508 or DC 7510 is not warranted. There is no evidence in the record that the Veteran has required catheter drainage, no evidence of pyonephrosis (infection) or severe hydronephrosis (swelling of the kidney due to a build-up of urine) since October 9, 2009. Accordingly, a rating of greater than 10 percent is not warranted under DC 7509. 38 C.F.R. § 4.115b, DC 7508, 7509, 7510.

The Veteran advances the argument that the rating should be increased in view of the hesitancy and difficulty he experiences starting a urine stream, and extreme pain on his left flank. See Statement of Representative dated February 2016.

The rating currently assigned to the Veteran contemplates his colic (flank pain). A compensable evaluation for obstructed voiding under 38 C.F.R. § 4.115a is only warranted when there is marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc, (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec), (3) recurrent urinary tract infections secondary to obstruction, or (4) stricture disease requiring periodic dilation every two to three months. As the record does not reflect symptomatology that would satisfy any of the four combination factors, a compensable evaluation for obstructed voiding under 38 C.F.R. § 4.115a is not warranted. 

As the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent from October 30, 2009, for kidney stones, the benefit of the doubt provision does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

B. Evaluation of Epididymitis

The Veteran's epididymitis is currently assigned an initial noncompensable evaluation from October 30, 2009, under 38 C.F.R. §4.115b, DC 7523. A February 2014 rating decision granted the Veteran special monthly compensation from October 30, 2009 for loss of use of a creative organ, pursuant to 38 C.F.R. § 3.350.

The Board finds that the Veteran's symptoms related to his testicles are not appropriately contemplated under DC 7523 for testicular atrophy, and are better approximated by a rating under DC 7525 for chronic epidiymo-orchitis, which directs such to be evaluated as a urinary tract infection. 

Under DC 7523, complete atrophy of one testicle warrants a noncompensable rating; a 20 percent rating is assigned for the complete atrophy of both testis. 38 C.F.R. § 4.115b, DC 7523.

Under 38 C.F.R. §4.115b, DC 7525, chronic epididymo-orchitis, rating is to occur under the urinary tract infection code, 38 C.F.R. §4.115a, which provides that a urinary tract infection requiring long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent rating. A 30 percent evaluation is not warranted unless drainage or hospitalization of at least three times per year, or continuous intensive management is warranted. 

A May 2010 VA examination confirmed a diagnosis of epididymitis. The report notes the Veteran reported urinating 6 times a day, with no problems starting urinating. No incontinence is noted. The Veteran reported some erectile dysfunction issues. The Veteran reported being afraid to walk a long distance, and reported having to sometimes lie down all day until the pain subsides. 

A June 2011 VA examination notes the Veteran as having reported extreme right flank pain, no trauma sustained to the genitals, lower abdominal pain, and extreme pain in both testicles. The Veteran is noted as having reported hesitancy or difficulty starting a stream, but did not report having dysuria, a weak/intermittent stream, straining to urinate, hematuria, dribbling, urethral discharge, frequency, or nocturia. The Veteran's condition was noted as being quiescent. 

A March 2016 VA examination noted the prior diagnosis of epididymitis, chronic, and notes reports of two hospitalizations in-service and subsequent infrequent transient episodes of pain in the scrotal region. The examiner notes the record of the 2003 scrotal ultrasound. The examiner noted reports of instances of sharp pain treated by laying down and taking Tylenol, and that the pain subsided after an hour. The Veteran is noted to having reported four episodes per year. The examiner concluded that there was no functional impact on the Veteran's ability to work. 

The Board finds that the Veteran's testicle condition has required one or two hospitalizations in the past, and finds the Veteran's reports of pain and his self-imposed restriction from walking significant distances to be consonant with the record and credible. Further, the reports of infrequent episodes of significant pain requiring treatment of over the counter medication and restriction from movement are found credible. The symptoms during the period in question are best approximated to a urinary tract infection requiring intermittent intensive management, which warrants a 10 percent evaluation under 38 C.F.R. §4.115a from October 30, 2009. However, a higher rating is not warranted under 38 C.F.R. §4.115a, as the Veteran does not require continuous intensive management, does not have poor renal function, does not require treatment equivalent to drainage/frequent hospitalization of at least three times per year, and does not otherwise a present a disability picture that can be reasonably approximated to these metrics. 

Special monthly compensation for loss of a creative organ has been granted by the RO and as such, further consideration by the Board is not required. 

As the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent from October 30, 2009 for epididymitis, claimed as testicles condition, the benefit of the doubt provision does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The claim of entitlement to an initial evaluation in excess of 10 percent for nephrolithiasis is denied

An initial evaluation of 10 percent for epididymitis, based on orchitis, is granted.



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs