Citation Nr: 18152063 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 13-23 645 DATE: November 21, 2018 ORDER From October 18, 2011, a rating of 30 percent for history of chronic kidney stones is granted. REMANDED Service connection for diabetes mellitus type II (diabetes), to include as secondary to history of kidney stones, is remanded. Entitlement to a separate rating for history of chronic kidney stones on the basis of voiding dysfunction or frequent urinary tract infections (UTIs) is remanded. FINDING OF FACT From October 18, 2011, the Veteran’s history of kidney stones has been productive of recurrent stone formation requiring diet therapy and drug therapy. CONCLUSION OF LAW From October 18, 2011, the criteria for a 30 percent rating for history of kidney stones are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7508. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1980 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified before the undersigned Veterans Law Judge. In May 2015, the Board reopened the Veteran’s claim for service connection for diabetes, and remanded this claim, along his claim for a rating in excess of 20 percent for history of kidney stones. In April 2018, the Board requested an opinion from a medical specialist under the employ of the Veterans Health Administration (VHA). The VHA provided the Board with the requested opinion in June 2018 (June 2018 VHA Opinion) and it has been associated with the record. The Veteran was provided with a copy of the opinion and was informed that he had 60 days to respond. See 38 C.F.R. § 20.903. Sixty days have since elapsed and no response has been received. The Board has bifurcated the Veteran’s increased rating claim as reflected above to allow for a favorable disposition at this time. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion). The Board notes that the Veteran has stated that he has been depressed as a result of his service-connected history of kidney stones. See February 2015 Hearing Transcript at 16-17; see also July 2013 T.F. Statement (Veteran no longer enjoys life, leaves house, travels, or interacts with family due to kidney stone issues). This claim is referred to the agency of original jurisdiction for appropriate action. See 38 C.F.R. § 19.9. The Board also observes that the disability benefits questionnaire (DBQ) completed by the Veteran’s private physician indicates that he experiences low back pain as a result of his service-connected condition, and his VA treatment records show that his back pain is productive of an abnormal range of motion. See August 2014 Private DBQ; September 2014 Treatment Note. If the Veteran believes that he has a functional impairment of his back related to his service-connected disability, he is encouraged to file a claim on the appropriate VA-promulgated form. 1. From October 18, 2011, a rating of 30 percent for history of kidney stones is granted. The instant appeal period is from October 18, 2011, the date that the Veteran filed his claim for an increased rating, plus the one-year lookback period. The Veteran’s service-connected history of kidney stones is presently rated at 20 percent throughout the appeal under DC 7599-7518, which provides that urethral stricture is to be to be rated as voiding dysfunction. 38 C.F.R. § 4.115b. The Board finds that application of DC 7508, which rates nephrolithiasis (kidney stones), is required, as it specific to the Veteran’s service-connected disability and allows for assignment of an increased rating at this time. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). As discussed in the Remand section below, the Veteran’s potential entitlement to a separate rating for voiding dysfunction or UTIs requires additional development. Under DC 7508, nephrolithiasis is to be rated as hydronephrosis under DC 7509, except when there is evidence of recurrent stone formation requiring one or more of the following: (1) diet therapy, (2) drug therapy, or (3) invasive or non-invasive procedures more than two times per year, warranting a maximum schedular 30 percent rating. Under DC 7509, for rating hydronephrosis, a maximum 30 percent schedular rating is assigned for frequent attacks of colic with infection (pyonephrosis) and impaired kidney function. Severe hydronephrosis is to be rated based on renal dysfunction. 38 C.F.R. § 4.115b. The Board observes that the Veteran’s private urologist has noted that his kidney condition is productive of, among other things, ureterolithiasis. See August 2014 Private DBQ. However, DC 7510, which rates ureterolithiasis, employs the same diagnostic criteria and ratings as DC 7508. Thus, only DC 7508 will be employed in the instant case, as to rate the Veteran’s disability under both 7508 and 7510 would constitute prohibited pyramiding. The Veteran’s history of kidney stones results in recurrent stone formation. See, e.g., February 2012 VA Form 21-4138 (reporting recurrent episodes of kidney stones in 2010, 2011, and 2012); February 2015 Hearing Transcript at 9 (three episodes of kidney stones in last year); April 2017 VA Examination Report (2-3 stones per year). Moreover, he has competently and credibly testified that he requires diet and drug therapy throughout the appeal; indeed, the Veteran testified that he needed diet therapy before he was even service-connected for the condition. See, e.g., January 2005 Hearing Transcript at 5 (diet therapy); April 2008 VA Examination Report (diet therapy); April 2012 NOD (diet therapy) August 2017 Vocational Rehabilitation Application (diet therapy); see also Dr. M.H.L. 2010 Treatment Notes (prescribed Vesicare for frequent urination); July 2013 VA Form 9 (UTIs with stone formation); February 2015 Hearing Transcript at 13 (antibiotics for UTIs); May 2016 Veteran Statement (diet therapy, drug therapy for UTIs); April 2017 VA examination report (diet therapy). Thus, the Board finds that he is entitled to a 30 percent rating under DC 7508, separate from any rating based on voiding dysfunction. The Board notes that a higher rating is not available under DC 7509, as the maximum schedular rating under that DC is also 30 percent. See 38 C.F.R. §§ 4.115b, DC 7508. The Board acknowledges that the June 2015 DBQ contains findings that, at times, differ from the other evidence of record. The Board finds that this evidence is not probative, as the physician who completed that DBQ was a plastic surgeon and was not the Veteran’s regular urologist, and moreover he appeared to rely upon inaccurate information (noting 2008 lithotripsy; records show this procedure occurred in 2003). REASONS FOR REMAND 2. Service connection for diabetes, to include as secondary to history of kidney stones, is remanded. The June 2018 VHA Opinion indicates that while prednisone and other glucocorticoids are a known risk factor for diabetes, prednisone is unlikely to “permanently” alter the course of his diabetes. See June 2018 VHA Opinion. The Board observes that this is not the correct standard, as VA regulations do not require aggravation to be “permanent.” See 38 C.F.R. § 3.310. Thus, an addendum opinion is needed on remand. The Board notes that there are gaps in the record concerning the Veteran’s relevant treatment. Moreover, he reports that he was prescribed prednisone for his kidney condition, and the VHA examiner noted that the dose and duration of his prednisone treatment was not clear from the record. See Hearing Transcript at 13-14; June 2018 VHA Opinion. The Veteran is encouraged to submit any evidence he may have showing relevant treatment for his kidney condition that is not already of record. 3. Entitlement to separate ratings for history of kidney stones on the basis of voiding dysfunction or UTIs is remanded. The Board observes that there is ambiguous and contradictory medical evidence as to whether (and to what degree) the Veteran’s urinary frequency is due to his service-connected history of kidney stones, as opposed to his nonservice-connected diabetes. See April 2017 VA Examination (urgency most likely due to diabetes); April 2014 DBQ (noting no voiding dysfunction and no urine leakage, but also noting use of absorbent materials 2 to 4 times per day due to his service-connected disability). Thus, this matter is intertwined with his claim for service connection for diabetes. Moreover, should his diabetes not be service-connected, an opinion should be obtained concerning whether it is possible to determine to what extent the Veteran’s urinary frequency is a result of his history of kidney stones, as opposed to as a result of his diabetes. The examiner should also opine as to whether his history of kidney stones results in loss of use of a creative organ, and as to whether his UTIs require long term drug therapy or intermittent intensive management. See April 2012 NOD; February 2013 VA Form 21-4138 (inability to have sex due to frequent urination and wearing absorbent material); July 2013 T.F. Statement (only sexually active once per month, previously 4-5 times a week); July 2013 VA Form 9 (unable to have intercourse due to hematuria and UTI). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include records discussing the dose and duration of his prednisone treatment for kidney stones and updated records from Dr. Lake. 3. Then refer the claims file to a suitably qualified clinician for preparation of an addendum opinion. No additional examination of the Veteran is needed, unless the examiner determines otherwise. Following a review of the claims file, the examiner should whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes mellitus: (i) is proximately due to the Veteran’s history of kidney stones, to include any medications used to treat the same; or (ii) has been aggravated (worsened beyond its natural progression – please note that such worsening need not be permanent) by the Veteran’s history of kidney stones, to include any medications used to treat the same. In addressing these questions, please discuss the July 2013 WebMD Article submitted by the Veteran, referencing an article from the May 2006 issue of The Journal of Urology supporting a link between show wave lithotripsy treatment of kidney stones and diabetes, and his testimony that his sugars are elevated when he has a flare of kidney problems. A comprehensive rationale must be provided for all opinions rendered, and please render separate opinions for inquiries (i) and (ii). If the examiner cannot provide any requested opinion without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 4. Then refer the claims file to the April 2017 VA examiner or other suitably qualified clinician for preparation of an addendum opinion. No additional examination of the Veteran is needed, unless the examiner determines otherwise. Following a review of the claims file, the examiner should address the following: (a) If the Veteran’s diabetes is not service-connected, please opine as to the most likely cause(s) of the Veteran’s urinary urgency. Specifically, please opine as to whether the Veteran’s urinary urgency is: (i) entirely due to his history of kidney stones, (ii) entirely due to his diabetes, (iii) due partially to each of his diabetes and his history of kidney stones, or (iv) due to some other cause or condition, in whole or in part, to include an unknown cause. (b) If the Veteran’s urinary urgency is attributable in multiple causes or conditions, please opine as to the relative extent that each cause or condition (to include unknown causes) is productive of the Veteran’s urinary urgency. (c) Please identify which of the following symptoms the term “urinary urgency” encompasses: (i) urinary leakage and/or incontinence, (ii) frequent daytime voiding, (iii) frequent awakening to void, or (iv) obstructed voiding. (d) Do the Veteran’s UTIs require long-term drug therapy or intermittent intensive management? (e) Does the Veteran’s history of kidney stones result in loss of use of a creative organ? See April 2012 NOD; February 2013 VA Form 21-4138 (inability to have sex due to frequent urination and wearing absorbent material); July 2013 T.F. Statement (only sexually active once per month, previously 4-5 times a week); July 2013 VA Form 9 (unable to have intercourse due to hematuria and UTI). A comprehensive rationale must be provided for all opinions rendered. If the examiner cannot provide any requested opinion without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel