Citation Nr: 18140509 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-10 593A DATE: October 3, 2018 ORDER Entitlement to an initial evaluation in excess of 30 percent for nephrolithiasis is denied. Entitlement to an effective date prior to April 19, 2012, for entitlement to service connection for chronic fatigue is denied. FINDINGS OF FACT 1. The Veteran’s nephrolithiasis is manifested primarily by required drug therapy and invasive procedures more than two times per year. Severe hydronephrosis is not shown. 2. VA did not receive the Veteran’s claim for compensation benefits for a chronic fatigue prior to April 19, 2012. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for nephrolithiasis are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.115b, Diagnostic Codes 7508 (2017). 2. The criteria for an effective date for the grant of service connection for chronic fatigue prior to April 19, 2012 have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to January 1997. The Board notes that there are VA treatment records regarding nephrolithiasis associated with the file subsequent to the most recent AOJ adjudication in April 2016. The treatment records are duplicative and not pertinent in that they indicate treatment for the condition but do not show any variance in symptoms. As noted in a January 2018 rating decision, the Veteran is in receipt of a combined disability evaluation of 100 percent. As a result, the issue of entitlement to is raised by this issue on appeal. 1. Entitlement to an initial evaluation in excess of 30 percent for nephrolithiasis 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. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined that the current uniform evaluation is appropriate. The Veteran is in receipt of an initial 30 percent evaluation for nephrolithiasis under Diagnostic Code 8875-7508, effective May 31, 2012. The Veteran has challenged the initial evaluation. Pursuant to Diagnostic Code 7508, nephrolithiasis is rated as hydronephrosis under Diagnostic Code 7509, except where there is recurrent stone formation requiring one or more of the following: (1) diet therapy; (2) drug therapy; or (3) invasive or noninvasive procedures more than two times per year. If evaluated under this code, the rating assigned will be 30 percent. 38 C.F.R. § 4.115b, Diagnostic Code 7508. The Veteran’s nephrolithiasis is assigned a 30 percent evaluation pursuant to drug therapy and invasive procedures under Diagnostic Code 7508. This is the schedular maximum. Pursuant to Diagnostic Code 7509, a schedular maximum of 30 percent is warranted where there are frequent attacks of colic with infection (pyonephrosis) and impaired kidney function. If hydronephrosis is severe, it is rated as renal dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7509. Even if the Board were to evaluate the Veteran’s nephrolithiasis under Diagnostic Code 7509, the medical evidence does not show severe hydronephrosis. To the degree that the Veteran experiences any hydronephrosis, an evaluation under Diagnostic Code 7509 would not benefit him as an evaluation in excess of 30 percent is not warranted. There is no evidence of severe hydronephrosis or renal dysfunction. Here, an initial evaluation in excess of 30 percent for nephrolithiasis is not warranted. 2. Entitlement to an effective date prior to April 19, 2012, for entitlement to service connection for chronic fatigue The Veteran is seeking an effective date earlier than April 19, 2012, for the grant of service connection for chronic fatigue. The general rule regarding effective dates is found at 38 U.S.C. § 5110 (a): Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date of an award of service connection will be the day following the date of separation from service if the veteran filed a claim within one year after service; otherwise, the effective date will be the date of receipt of his claim. 38 U.S.C. § 5110 (a), (b)(1). A “claim” is a “formal or informal written communication requesting a determination of entitlement or evidencing belief in entitlement, to a benefit.” 38 C.F.R. § 3.1 (p). In this case, the Veteran has not provided a specific argument as to why an earlier effective date is warranted and has not referenced a specific date for which he believes service connection should be effective. The record contains an April 19, 2012, application for compensation for chronic fatigue. The record does not contain a formal or informal claim prior to April 19, 2012, the current effective date of service connection. To the extent that the Veteran is asserting that he filed an earlier formal or informal claim, prior to April 19, 2012, the record does not support this. The provisions of 38 U.S.C. § 5110 (a) require that the effective date shall not be earlier than the date of receipt of application therefor, which in this case is April 19, 2012. Lastly, the Board has considered the issue as a potential liberalizing law or VA issue. Generally, the person must have met all the criteria from the date in the change of the law forward. Here, according to the application, 21-516, the fatigue disability began in 2007. Although he reported trouble sleeping during service, such did not establish the existence of a disability due to fatigue at such time. Since the disability, as reported by the Veteran, post-dated the change in the law, an earlier effective date based upon a liberalizing law may not be assigned. 38 U.S.C. § 5110(g). As the preponderance of the evidence is against the claim for an earlier effective date for the grant of service connection for chronic fatigue, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107 (b); Gilbert v, Derwinksi, 1 Vet. App. 49, 53-56 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel