Citation Nr: 20064303 Decision Date: 10/02/20 Archive Date: 10/02/20 DOCKET NO. 20-03 233 DATE: October 2, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected urethral calculus is denied. REMANDED Entitlement to service connection for hypertension, to include as due to Agent Orange exposure, is remanded. FINDING OF FACT The Veteran’s urethral calculus is manifested as recurrent kidney stone formation requiring invasive, or noninvasive, procedures more than two times per year. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for service-connected urethral calculus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7509, 7510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1967 to June 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a 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 required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Urethral Calculus The Veteran’s urethral calculus is rated under Diagnostic Code 7510 for ureterolithiasis. Ureterolithiasis is rated on the basis of hydronephrosis, except in the case of recurrent kidney stone formation requiring one or more of the following: diet therapy, drug therapy, or invasive or non-invasive procedures more than twice a year, in which case, the disability is rated as 30 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7510. Under the criteria applicable to hydronephrosis, a 10 percent rating applies to only an occasional attack of colic without infection or the need for catheter drainage. A 20 percent rating applies to frequent attacks of colic requiring catheter drainage. A maximum 30 percent rating applies to frequent attacks of colic with infection and impaired kidney function. Severe hydronephrosis is to be rated as renal dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7509. In relevant part, in order to be entitled to a 60 percent disability rating for renal dysfunction, the evidence must show constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under DC 7101. The Veteran underwent a September 2018 VA examination for the claimed condition. The examiner diagnosed the Veteran with nephrolithiasis and ureterolithiasis. Further, the examiner noted that the Veteran passes a kidney stone every week for the past 25 years. Additionally, the examiner indicated that the Veteran has had numerous lithotripsies and cystoscopies with stone removal. The examiner continued, noting that despite the Veteran’s numerous kidney stones his renal function has been normal. The examiner indicated that the Veteran experiences pain when passing a stone, but does not have impaired kidney function, nor does the Veteran’s disability require catheter drainage. Additionally, the examiner noted that the Veteran does not have a history of recurrent symptomatic bladder or urethral infections. The Veteran’s treatment records indicate that he has undergone numerous lithotripsies and cystoscopies with stone removal. However, the Veteran’s kidney function has not been reported as impaired. The Veteran’s urethral calculus disability is rated 30 percent for invasive, or noninvasive, procedures more than two times per year. A higher disability rating is not warranted under DC 7509 as the Veteran has not demonstrated renal dysfunction, constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under DC 7101. A higher rating is not warranted under any other potentially applicable Diagnostic Code either. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In order to warrant a higher rating, the record must show kidney transplant (DC 7531) or neoplasm (DC 7528). 38 C.F.R. § 4.115b. Neither of these situations are present in the current claim. For these reasons, the Board finds that a rating in excess of 30 percent for the Veteran’s urethral calculus disability is not warranted at any time during the appeal period. Therefore, the Board concludes that a preponderance of the evidence is against a rating in excess of 30 percent for the Veteran’s disability. The claim is, therefore, denied. REASONS FOR REMAND Hypertension In the National Academies of Sciences, Engineering and Medicine (NAS) Veterans and Agent Orange: Update 11 (2018), the (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. As a result, hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to herbicide agents to the category of “sufficient” evidence of an association with exposure to herbicide agents. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. The Veteran submitted an April 2020 private medical opinion from a Dr. M.S. In this opinion, Dr. M.S. cited to, and discussed, multiple studies in support of his opinion, however, these studies are not thoroughly cited to or explained, and in some instances seem to discuss studies regarding Korean war Veterans. The Veteran did not serve in Korea. The Board finds that an additional medical opinion is required to address the etiology of the Veteran’s hypertension to include as whether it is etiologically related to his conceded in-service herbicide exposure. Additionally, the VA examiner should comment on the Veteran’s April 2020 private treatment opinion, including the sources and studies cited by Dr. M.S. The matters are REMANDED for the following action: Obtain a medical opinion from a VA examiner with sufficient expertise to comment on the etiology of the Veteran’s hypertension disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran’s hypertension at least as likely as not (a 50 percent probability or greater) originated during the Veterans period of active service or is otherwise etiologically related to his active service, to include as due to Agent Orange exposure while serving in Vietnam. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. Specifically, the examiner should address the Veteran’s reports of being treated for high blood pressure while in active duty service. In rendering an opinion, the examiner must address the NAS finding that there is sufficient evidence of an association between exposure to herbicide agents and hypertension. Additionally, the examiner must comment on the Veteran’s April 2020 private medical opinion, including the sources and medical studies cited to by Dr. M.S. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.