Citation Nr: 18149375 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-40 710A DATE: November 9, 2018 ORDER Service connection for diarrhea is denied. For the entire initial rating period from June 7, 2013, a higher initial rating of 30 percent, but no higher, for nephrolithiasis (kidney stones) with polycystic kidney disease (kidney disorder) is granted. FINDINGS OF FACT 1. The Veteran does not have a current disability manifested by symptoms of diarrhea. 2. For the initial rating period on appeal from June 7, 2013, the service-connected kidney disorder has been manifested by renal dysfunction with hypertension at least 10 percent disabling under Diagnostic Code 7101. 3. For the initial rating period on appeal from June 7, 2013, the service-connected kidney disorder has not manifested in renal dysfunction with constant albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. CONCLUSIONS OF LAW 1. The criteria for service connection for diarrhea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Resolving reasonable doubt in the Veteran’s favor, for the entire initial rating period on appeal from June 7, 2013, the criteria for a 30 percent disability rating for the service-connected kidney stones with kidney disorder, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes 7508, 7509, 7533. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from May 1989 to May 1993, November 2002 to December 2003, November 2005 to January 2006, September 2007 to November 2007, and from January 2010 to February 2010. 1. Service Connection for Diarrhea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran generally contends that service connection for diarrhea is warranted. After a review of all the lay and medical evidence of record, the Board finds that the Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a diagnosed disability manifested by symptoms of diarrhea. Although the medical evidence of record contains numerous reports of diarrhea, the Veteran underwent VA examinations in August 2015 and February 2016, the examination reports for which show the Veteran does not have a current disability manifested by symptoms of diarrhea. Furthermore, the February 2016 VA examiner stated that the Veteran has only had a partial gastrointestinal workup with some stool specimens to date, as he has declined to undergo a colonoscopy, which at the Veteran’s age is required to make a definitive diagnosis. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street). As such, the February 2016 VA examiner was unable to render a diagnosis regarding the claimed symptoms of diarrhea. Other VA and private treatment records also do not reflect a current diagnosis for a disability manifested by symptoms of diarrhea. As discussed above, with any claim for service connection, it is necessary for a current disability to be present. See Moore, 21 Vet. App. at 215; Brammer, 3 Vet. App. at 225; Rabideau, 2 Vet. App. at 143 44; McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. As the Veteran is not currently diagnosed with a disability manifested by symptoms of diarrhea, the Board finds that the criteria for service connection for a disability manifested by symptoms of diarrhea have not been met. 2. Initial Rating for Nephrolithiasis (kidney stones) with Polycystic Kidney Disease 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. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. For the entire initial rating period on appeal from June 7, 2013, the Veteran is in receipt of a noncompensable (0 percent) disability rating for the service-connected kidney disorder under Diagnostic Code (DC) 7508. Under DC 7508, nephrolithiasis is rated as hydronephrosis under DC 7509, except a veteran is entitled to a 30 percent rating under DC 7508 when 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. 38 C.F.R. § 4.115b. Under DC 7509, a 10 percent disability rating is assigned for nephrosis manifested by only an occasional attack of colic, without infection (pyonephrosis) or need for 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 disability is to be rated based on renal dysfunction. 38 C.F.R. § 4.115b. Under DC 7533, cystic diseases of the kidneys, such as polycystic disease, are rated as renal dysfunction. Renal dysfunction is rated under 38 C.F.R. § 4.115a. A noncompensable (0 percent) rating is assigned when there is albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. A 30 percent rating is warranted when albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101. A 60 percent rating is warranted when there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating requires persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or blood urea nitrogen more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. Under DC 7101, a 10 percent rating is assigned for diastolic blood pressure predominately 100 or more, or; systolic blood pressure predominantly 160 or more, or; is the minimum rating for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is assigned for diastolic readings of predominantly 110 or more or systolic readings of 200 or more. A 40 percent disability rating is assigned for diastolic readings of predominantly 120 or more. A 60 percent disability rating is assigned for diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran generally contends that a higher (compensable) initial rating for the service-connected kidney disorder is warranted because his kidneys are functioning at 30 percent and doctors have advised the Veteran to speak with family members regarding possible kidney donation. See August 26, 2015 Notice of Disagreement. After a review of all the evidence, lay and medical, and resolving reasonable doubt in the Veteran’s favore, the Board finds that, for the entire rating period from June 7, 2013, a higher initial rating of 30 percent is warranted under Diagnostic Code 7533. VA treatment records show the service-connected kidney disorder has manifested in renal dysfunction with hypertension that is at least 10 percent disabling under Diagnostic Code 7101. A July 2012 VA treatment record reflects blood pressure was measured at 170/100, 170/104, and 155/106. Furthermore, subsequent VA treatment records show the Veteran’s hypertension requires continuous medication for control. See February 2016 VA examination report. Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for an initial 30 percent rating for the service-connected kidney disorder under Diagnostic Code 7533 have been met. 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b. The Board further finds that an initial disability rating in excess of 30 percent for the kidney disorder is not warranted for any period. For the initial rating period on appeal from June 7, 2013, the service-connected kidney disorder has not manifested in renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. The Veteran underwent VA examinations in August 2015 and February 2016, the examination reports for which do not contain findings of constant albuminuria with some edema or definite decrease in kidney function. VA and private treatment records also reflect negative findings of edema throughout the entire rating period on appeal. See November 2013 VA treatment record; September 2015 VA treatment record; December 2015 VA treatment record; April 2016 VA treatment record. While the Veteran reported that his kidneys are functioning at 30 percent and doctors have advised the Veteran to speak with family members regarding possible kidney donation, the medical evidence of record does not indicate decrease in kidney function. A November 2012 VA treatment record shows an evaluation of the kidney disorder revealed stage three polycystic kidney disease that would eventually progress to end state renal disease over time, but at the time the Veteran did not exhibit any anemia or metabolic abnormalities associated with the kidney disorder. A November 2013 VA treatment record shows creatinine levels were stable. The August 2015 and February 2016 VA examination reports also do not reflect findings of decreased kidney function. The Board has also considered whether a higher rating is warranted based on hypertension at least 40 percent disabling under DC 7101. VA and private treatment records throughout the entire initial rating period on appeal and the August 2015 and February 2016 VA examination reports show diastolic blood pressure have consistently been measured to less than 120. Furthermore, January 2016 and April 2016 VA treatment records reflect the Veteran reported checking blood pressure at home regularly, and that diastolic blood pressure was normally measured between 90-110s range. Accordingly, the Veteran’s blood pressure readings throughout the appeal period do not meet or more nearly approximate the 40 percent criteria under DC 7101 so as to warrant the higher 60 percent rating under the renal dysfunction criteria. 38 C.F.R. § 4.115a. (Continued on the next page)   Based on the foregoing, the Board finds that the weight of the evidence is against a higher initial disability rating in excess of 30 percent for the kidney disorder for any period. See 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel