Citation Nr: 1806525	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-28 969A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial compensable rating for a left kidney disability.


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

D. Houle, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 2005 to April 2011.
 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  Jurisdiction over the matter now resides with the Denver, Colorado RO.

In October 2017, the Veteran testified at a videoconference Board hearing before the undersigned at the Denver RO.  A transcript of that hearing is of record.


FINDING OF FACT

For the entire period on appeal, the Veteran's left kidney disability is manifested by kidney function impairment.


CONCLUSION OF LAW

The criteria for an initial compensable rating of 30 percent for a left kidney disability have been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.1, 4.7, 4.115b, Diagnostic Code (DC) 7509 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in March 2011.  The Veteran's claim for a higher evaluation is a downstream issue, which was initiated by the notice of disagreement.  The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what ?evidence [is] necessary to establish a more favorable decision with respect to downstream elements..."  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Thus, there is no duty to provide additional notice.

The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examinations of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Entitlement to an Initial Compensable Rating

A.  Legal Principles

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2017).

The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2017).

While the veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

B.  Factual Background and Analysis

The Veteran was granted service connection for a left kidney disability by a February 2012 rating decision where an initial noncompensable disability rating was assigned, effective April 16, 2011.

The Veteran's service-connected left kidney disability is rated under 38 C.F.R. § 4.115b, DC 7599-7509, pertaining to hydronephrosis.  See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen).  Pursuant to 38 C.F.R. § 4.27, unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and '99'.  See 38 C.F.R. § 4.20 (2017) (when an unlisted condition is encountered it will be permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous).  Here, the RO determined that the most closely analogous DC is 38 C.F.R. § 4.115b, DC 7509 (2017) (Hydronephrosis).  

Hydronephrosis is rated as 10 percent disabling when there is only an occasional attack of colic, not infected and not requiring catheter drainage.  A 20 percent rating is warranted when there are frequent attacks of colic, requiring catheter drainage.  A maximum 30 percent evaluation is warranted when there are frequent attacks of colic with infection (pyonephrosis), with impaired kidney function.  If hydronephrosis is severe, it is rated as renal dysfunction.  38 C.F.R. § 4.115b, DC 7509 (2017).

Turning to the evidence of record, the Veteran underwent a VA examination in May 2011.  He reported symptoms of left flank pain and that during a November 2010 medical evaluation, he was informed that he had 20 to 30 percent function remaining in his left kidney.  The examiner diagnosed the Veteran with reduced left kidney function.

The Veteran was afforded an additional VA examination in April 2016.  He reported symptoms of left flank pain every other day, lasting 6 to 12 hours.  The examiner found no evidence of renal dysfunction, and the Veteran's urinalysis test was normal.  The Veteran was diagnosed with reduced left kidney function.

A Disability Benefit Questionnaire (DBQ) was completed in July 2017.  The examiner conducted a telephone interview with the Veteran who reported daily left flank pain and that his urologist informed him that his 2016 renal scan noted a partial obstruction present in his left kidney, which would require a third surgery to remove the lower third portion of his left kidney and reattach the ureter.  The examiner diagnosed the Veteran with reduced left kidney function and found that, while the Veteran did not meet the criteria for renal dysfunction, the Veteran's nuclear renal scan from April 2016 showed a split function of 65.5% and 34.5% between the right and left kidneys, respectively, illustrating mildly decreased function of the left kidney.  

During his October 2017 videoconference Board hearing, the Veteran testified that he experiences daily left flank pain.  He reported that drinking fluids increases the pain, therefore, he limits his intake.  The Veteran's wife testified that around 2011, she began to notice changes in the Veteran's physical behavior.  He had increased left side pain, difficulty sleeping, and was afraid to drink fluids because it exacerbated the pain in his left side.

Upon review of the record, the Board finds that an initial compensable rating for the Veteran's service-connected left kidney disability is warranted.  The evidence from the Veteran's VA examinations, post-service treatment records, and the Veteran's hearing testimony and lay statements reflect that the Veteran's left kidney disability more nearly approximates a 30 percent initial rating under DC 7509 for kidney function impairment.

The Board finds particularly persuasive the May 2011 and April 2016 VA examinations, as well as the July 2017 DBQ.  All three VA examiners diagnosed the Veteran with reduced left kidney function.  Specifically, the July 2017 examiner noted that the Veteran's post-service treatment records confirm a decrease in the Veteran's left kidney function.  As the possible ratings pertaining to kidney disabilities under 38 C.F.R. § 4.115b are limited, the Board has considered the Veteran's symptoms of left flank pain, as well as multiple diagnoses confirming reduced left kidney function.  While DC 7509 criteria includes symptoms pertaining to attacks of colic, the criteria for a 30 percent disability rating is most in line with the Veteran's symptoms and diagnoses of reduced left kidney function, as this rating encompasses kidney function impairment, which the Veteran clearly demonstrates through his treatment records and multiple VA examination diagnoses.  Accordingly, an initial 30 percent disability rating for the Veteran's service-connected left kidney disability is granted.

The Board has considered whether an evaluation higher than 30 percent is warranted under 38 C.F.R. § 4.115a, Renal Dysfunction.  Under 38 C.F.R. 4.115b, DC 7509, a 30 percent evaluation requires impaired kidney function, while a 60 percent evaluation under 38 C.F.R. § 4.115a requires ?definite decrease in kidney function" or evidence of hypertension at least 40 percent disabling under DC 7101.  While the Veteran is diagnosed with reduced kidney function, and the July 2017 VA examiner found ?mildly" decreased left kidney function, the examiner found no evidence of ?definite" decrease in kidney function to warrant a higher rating of 60 percent under 38 C.F.R. § 4.115a.  In other words, the examiner found some impaired kidney function, which suffices for the 30 percent evaluation, but did not find any substantial decreased kidney function as to reasonably establish "definite" reduced function.  As the evidence of record reflects there is no diagnosis of hypertension, nor is there a definite decrease in the Veteran's left kidney function, an evaluation of 60 percent under 38 C.F.R. § 4.115a, Renal Dysfunction, is not warranted.  

In sum, the Board concludes that an initial 30 percent disability rating, but no higher, is warranted for the Veteran's service-connected left kidney disability for the entire period on appeal.  38 C.F.R. § 4.115b, DC 7509.  


ORDER

Entitlement to an initial disability rating of 30 percent for a left kidney disability for the entire period on appeal is granted, subject to the law and regulations governing the payment of monetary benefits.



____________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs