Citation Nr: 1806742	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-35 050	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to a compensable rating for post-operative residuals of left ureteropelvic junction obstruction, left lower renal calculus.

2. Entitlement to compensable rating for surgical scar with muscle cramps associated with post-operative residuals of left ureteropelvic junction obstruction, lower left renal calculus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Harner, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1987 to July 1990.

This matter is before the Board of Veterans' Appeal (Board) from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In December 2015, the Board remanded this case for an additional VA examination. The Veteran attended an examination in January 2016, and a supplemental statement of the case (SSOC) was furnished in February 2016.

The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDINGS OF FACT

1. The Veteran's post-operative residuals of left ureteropelvic junction obstruction, left lower renal calculus (nephrolithiasis) is urologically asymptomatic, creates no obstruction, causes no urinary tract infections, and creates no additional pain.

2. The Veteran's surgical scar with muscle cramps associated with post-operative residuals of left ureteropelvic junction obstruction, lower left renal calculus causes tenderness to the touch of the larger scar as well as additional discomfort.


CONCLUSIONS OF LAW

1. The criteria for a compensable rating for post-operative residuals of left ureteropelvic junction obstruction, left lower renal calculus (nephrolithiasis) have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 7508 (2017).

2. The criteria for a 10 percent disability rating, but no higher, for surgical scars with muscle cramps associated with post-operative residuals of left ureteropelvic junction obstruction, lower left renal calculus have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 5319-7805 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Letters sent to the Veteran in August 2009 and May 2010 provided compliant notice.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(d). The duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).

The Veteran underwent VA examinations in October 2009, April 2010, and January 2016 to assess the status of his nephrolithiasis (kidney stone) and surgical scars during the appeal period. Additionally, neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board's adjudication of the claims below.

I. Rating Criteria

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. In this case, staged ratings are not warranted because the Veteran has demonstrated a relatively stable level of symptomatology throughout the appeal, which were not sufficient for a higher rating at any other time during the appeal process. Fenderson, 12 Vet. App. At 126-27.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Additionally, VA is required to provide a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The Veteran requested another examination on November 2, 2017 based on the last exam being conducted over twenty-one months ago. The Veteran has not supplied the VA with additional evidence that would require an additional examination. See Caffrey v. Brown, 6 Vet. App. 377 (1994) (appellant submitted a counselor's letter suggesting appellant's condition had worsened). The January 2016 examinations directly addressed the issues on appeal, and the Board finds there is no current reason to supply another examination at this time.

II. Nephrolithiasis

The Veteran was service connected for nephrolithiasis, with an effective date of August 23, 1990; the disability is currently non-compensable under Diagnostic Code 7508. 38 C.F.R. § 4.115b. 

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.

Pursuant to Diagnostic Code 7509, hydronephrosis warrants a 10 percent rating where there is only an occasional attack of colic, without infection and without requiring catheter drainage. A 20 percent disability rating is warranted for frequent attacks of colic requiring catheter drainage. A 30 percent disability rating 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. 

The Veteran has received multiple VA examinations since his service connection for nephrolithiasis, ranging from 2009 to 2016; each will be addressed in order.

An October 2009 exam conceded that the surgical procedure to remove a kidney stone in 1990 was not successful, however it also stated that the stone does not cause the Veteran any issues. The examiner said the Veteran was urologically asymptomatic, had no obstruction, no urinary tract infections, and no other pain aside from occasional twinges of pain in the area of his scar. 

An April 2010 exam found that the Veteran was not currently in treatment for his nephrolithiasis, but he still complained of muscle pain and twitching at the site of the surgery. The Veteran also reported that the symptoms were getting worse, and he described them as itching and muscle twitching that would last a few seconds. The exam notes no history of trauma to the genitourinary system or neoplasm, no urinary symptoms or leakage, no recurrent urinary tract infections (UTI), no urinary retention, no renal dysfunction or failure, no acute nephritis or hyronephrosis. It does state the existence of a kidney stone and flank or back pain. Additionally, the VA examiner opines that the ureteropelvic junction obstruction of his left kidney appears congenital, and there are no significant effects therefrom. 

The most recent VA exam happened in January 2016. The Veteran again described itching in the area of his scars, he also described having occasional pain that ranges from moderate to severe; he could not describe the monthly frequency of painful occurrences. The Veteran was not in treatment for his issue, did not show symptoms of urolithiasis, and had no history of UTIs or kidney infections. The examiner's remarks were as follows:

I found no medical evidence of recurrent stone formation, medical signs/symptoms of obstruction, requirement for diet or invasive therapy, hydronephrosis, or attacks of colic. I found no evidence of reduced kidney function at examination today. CT scan in 2009 shows stable 1 mm non-obstructive stone in the left kidney. I found no evidence of a disabling condition related to kidney function at examination today.

The objective evidence here does not support a rating above non-compensable under Diagnostic Code 7508. While the Veteran has a history of nephrolithiasis there is no finding that the Veteran experiences occasional attacks of colic, which is required to receive a 10 percent rating. Furthermore, there is no showing that the Veteran experiences recurrent stone formation that requires one or more of the following: diet therapy, drug therapy, invasive or non-invasive procedures more than two times per year; or renal dysfunction symptoms including: albumin constant or recurring with hyaline and granular casts or red blood cells; or hypertension at least 10 percent disabling under Diagnostic Code 7101; or transient or slight edema. None of these symptoms are similar to the Veteran's reports of itching and pain, nor are they similar to any of the findings made by the examiners.

The Board finds the evidence does not warrant a rating increase above the current non-compensable rating under Diagnostic Code 7508. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). The current diagnostic code evaluation is proper at this time.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim for assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

III. Surgical Scars

In September 2012 the RO granted service connection under Diagnostic Codes 5319 and 7805 for the Veteran's surgical scars. The scars were given a non-compensable rating, and the Veteran filed for an increased evaluation in December 2012.  Although the RO has designated 5319 and 7805 as most appropriate, the Board has reviewed the Veteran's service-connected surgical scars under all potentially applicable diagnostic codes including 5319 and 7805 in an effort to afford the Veteran the best possibility of obtain a compensable rating.  

Diagnostic Code 7805 provides that any scars (linear or otherwise) should be evaluated, even if not considered, in a rating provided under Diagnostic Codes 7800-04. 38 C.F.R. § 4.118.

Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck that are deep and nonlinear. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage 38 C.F.R. § 4.118. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118.

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck that are superficial and nonlinear. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118.

Diagnostic Code 7804 provides a 10 percent rating for superficial unstable scars. Diagnostic Code 7804 provides that one or two scars that are unstable or painful are rated 10 percent disabling. Three or more scars that are unstable or painful are rated 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7891, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118.

The Veteran received a VA examination in January 2016 to examine the severity of his surgical scars associated with the attempted removal of his kidney stone. The Veteran has two scars, both linear and measuring 28 cm and 4cm. The examiner found that the larger scar is tender to the touch, which causes some pain. The Veteran also reported some itching around his scars as well as issues performing some functions such as painting when he must raise his arm over his head to do so. The Veteran is competent to report these symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

After a review of all the evidence, Diagnostic Codes 7801 and 7802 are inapplicable as the Veteran's scars are linear. Additionally, the scars are superficial without skin breakdown, keloid formation, or inflammation. 

Diagnostic Code 7804 is the applicable code here because the Veteran's surgical scars are linear; and due to the Veteran reporting tenderness from his larger scar he does satisfy the criteria for a 10 percent evaluation, but no higher, for the entire rating period under Diagnostic Code 7804. 

Accordingly, the Board finds that the evidence is in favor of the claim for a 10 percent rating, but no higher, for the residual surgical scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. The benefit-of-the-doubt doctrine is therefore applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 49. 

The Veteran, however, is not entitled to a rating in excess of 10 percent under Diagnostic Code 7804. Entitlement to a 20 percent rating under the Code requires the Veteran to have three or four scars that are unstable or painful, and entitlement to a 30 percent rating requires at least five scars that are unstable or painful. 38 C.F.R. 4.118, Diagnostic Code 7804. Because the Veteran only has two scars, a rating higher than 10 percent is not warranted.

The scars have also been evaluated under Diagnostic Code 5319. 38 C.F.R. § 4.73. which provides for ratings of Muscle Group XIX which govern function of support and compression of the abdominal wall and lower thorax; flexion and lateral motions of the spine; and synergists in strong downward movements of the arm: and include muscles of the abdominal wall: the rectus abdominis; external oblique; internal oblique; tranvesalis; and quadratus lumborum. A slight injury warrants a non-compensable rating; a moderate injury warrants a 10 percent rating; a moderately severe injury warrants a 30 percent rating; and a severe injury warrants a 50 percent rating.

The examiner noted, in the January 2016 examination, that the Veteran experienced discomfort and itching around his scars, and stated that it is possible the issues could be intestinal obstruction, diverticulosis, or other muscle complications. The examiner says he could not determine if any of the aforementioned complications exist without more medical evidence. Additionally, the VA examination did not note any debilitating muscle issues, while acknowledging cramping in the region around the scars. The examiner stated that the Veteran is not prevented from working in any capacity and further stated that because the "Veteran's records do not show he has presented for care" his symptomatology is considered slight. 

The Veteran is not entitled to a compensable rating of 10 percent under Diagnostic Code 5319 because his injuries are only considered slight. The examiner says the Veteran is not barred from working and does not seek treatment for any muscular disability in the region of his scars. For entitlement to a 10 percent rating the Veteran would need to demonstrate a moderate injury. The examiner only found evidence showing a slight injury and stated more evidence is needed to show the disability is worse than that.  As the preponderance of the competent evidence demonstates that the muscle-related scar disability is no more than slight, a compensable disability rating is not warranted for the Veteran's surgical scars under Diagnostic Code 5319. 38 C.F.R. § 4.73.

As noted above, however, the evidence is in favor of the claim for a 10 percent rating for the residual surgical scar under 38 C.F.R. § 4.118, Diagnostic Code 7804.  As such an overall 10 percent disability rating, but no higher, is warranted.


ORDER

An increased rating for post-operative residuals of left ureteropelvic junction obstruction, left lower renal calculus, rated as non-compensable, is denied. 

An increased rating of 10 percent, but no higher, for surgical scar with muscle cramps associated with post-operative residuals of left ureteropelvic junction obstruction, lower left renal calculus is granted.



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MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs