Citation Nr: 20042822 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 14-29 269 DATE: June 24, 2020 ORDER A rating in excess of 30 percent for post-operative residuals of a left nephrectomy is denied. FINDING OF FACT For the entire appeal period, the Veteran’s post-operative residuals of a left nephrectomy is manifested predominately by renal dysfunction, but such does not result in constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101, and his residual scars are asymptomatic and not of a size to warrant a compensable rating. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for post-operative residuals of a left nephrectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.27, 4.115b, Diagnostic Code 7504-7509. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to May 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified at a Board hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2018, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a rating in excess of 30 percent for post-operative residuals of a left nephrectomy. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart, supra. Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on February 1, 2011, the date the Veteran’s post-operative residuals of a left nephrectomy was assigned a 30 percent rating. In this regard, the Board notes that Diagnostic Code 7500 provides that a minimum 30 percent rating assigned for the removal of one kidney, or such may be rated as renal dysfunction if there is nephritis, infection, or pathology of the other. Further, such disability is currently evaluated pursuant to Diagnostic Code 7504-7509. 38 C.F.R. § 4.115b. In this regard, hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, the hyphenated diagnostic code indicates chronic pyelonephritis rated under Diagnostic Code 7504 is the service-connected disorder and the residual symptom of hydronephrosis is rated under Diagnostic Code 7509. In the instant case, the evidence demonstrates that the Veteran underwent a left nephrectomy and, thus, his kidney disability warrants a minimum rating of 30 percent. In this regard, while Diagnostic Code 7504 provides that chronic pyelonephritis is rated as renal dysfunction or urinary tract infection, whichever is predominant; however, a 30 percent rating is the maximum evaluation available for urinary tract infection. Similarly, under Diagnostic Code 7509 provides a maximum rating of 30 percent for hydronephrosis, unless such is severe, then it is rated as renal dysfunction. Consequently, as renal dysfunction has been determined to be the predominant disability related to the Veteran’s kidney disability, the only way for him to receive a rating in excess of 30 percent is to demonstrate renal dysfunction manifested by constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101, which is defined as diastolic pressure predominately 120 or more, which results in a 60 percent rating. Additionally, a 80 percent rating is warranted where there is renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Finally, a 100 percent rating is warranted where there is renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. In this regard, a July 2011 VA examination was negative for lethargy, weakness, anorexia, and weight loss or gain. While the Veteran had pull and discomfort at the site of his operation, his urinary flow was fair. There was no recurrent urinary tract infections, renal colic or bladder stones, or acute nephritis. The Veteran’s blood pressure was 126/80 and he had no cardiovascular symptoms. In this regard, it was observed that a cardiac stress test two months previously was negative. The examiner noted that the Veteran’s laboratory test results are indicative of renal failure, but his BUN (18 mg/dl) and creatinine (1.29) were normal. At a September 2013 VA examination, the Veteran’s blood pressure was 120/80 and there was no edema in the lower extremities. There was a benign, stable, superficial, and nonlinear scar on the torso in the left flank region for a previous left pyeloplasty, which measured 23 cm by 1 cm, and was not painful or tender. There was also an old, healed transverse scar in the left lower quadrant of the abdomen for a previous left nephrectomy, which measured 10 cm by 0.5 cm., and was superficial, nonlinear, benign, stable, not painful, and not tender. Laboratory test results revealed BUN at 16 mg/dl and creatinine at 1.02. The examiner observed that there was a slight elevation of renal function noted since his nephrectomy in November 2010, but his condition was otherwise stable. There was no ongoing renal insufficiency noted. Upon examination, the examiner found no evidence of renal dysfunction, urinary tract infection, or other signs or symptoms related to his left nephrectomy, or related functional impairment. VA treatment records reflect a blood pressure reading of 128/70 in February 2014. Further, upon VA examination in August 2014, while the Veteran reported frequent urination of 2 to 3 hours during the day and twice a night, he had no renal dysfunction, urinary tract infection, or other signs or symptoms related to his left nephrectomy. His scarring was not painful, unstable, or totals an area equal to or greater than 39 sq. cm., and his BUN was 15.7 mg/dl and his creatinine was 1.23, both of which were noted to be normal. No functional impairment related to the Veteran’s kidney disability was noted. VA treatment records reflect blood pressure readings of 128/70 in January 2015, 102/78 in December 2015, and 124/70 in May 2017. As the Veteran reported additional genitourinary symptomatology at his January 2018 Board hearing, to include voiding accidents (occurring twice since 2014) and urinary frequency of every one to two hours during the day and three times a night, which required him to wear absorbent materials, pain near his surgical site and scars, and painful urination and blood in the urine on occasion, the Board remanded the case in order to obtain updated treatment records and afford him a contemporaneous VA examination so as to determine the nature and severity of his left nephrectomy. In this regard, while the Veteran did not reply to a February 2019 letter requesting that he submit, or authorize VA to obtain, private treatment records, to include those from Dr. Zinny, his VA treatment records reflect that he had nocturia twice a night and his blood pressure was 120/76 in May 2018. Thereafter, at a March 2019 VA examination, the Veteran reported tingling during urination, and urinary frequency of 6 times a day and twice at night. However, there was no renal dysfunction, urinary tract infection, or other signs or symptoms related to his left nephrectomy, and the Veteran’s scarring was not painful, unstable, or totals an area equal to or greater than 39 sq. cm. His BUN was 13.6 mg/dl and his creatinine was 1.08, both of which were noted to be normal, and the examiner found that such disability had no impact on the Veteran’s activities of daily living. Thus, based on the foregoing, the Board finds that the Veteran’s residuals of his left nephrectomy does not result in renal dysfunction manifested by constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101, which is defined as diastolic pressure predominately 120 or more. Consequently, a rating in excess of 30 percent based on renal dysfunction is not warranted. The Board further observes that the Veteran has reported urinary frequency that he alleges is related to his left nephrectomy, which, at its most frequent is described as voiding every one to two hours during the day and three times a night. However, none of the VA examiners have related such symptomatology to his service-connected kidney disability. Nonetheless, even assuming that such frequency is indeed residual to the Veteran’s left nephrectomy, the evidence does not show that such results in symptomatology that would warrant a rating in excess of 30 percent. Specifically, in order to assign such a rating, which is 40 percent, there must be a daytime voiding interval less than one hour, or; awakening to void five or more times per night. Furthermore, as renal dysfunction has been determined to be the predominant disability associated with the Veteran’s left nephrectomy, a separate rating based on urinary frequency is precluded by regulation. Specifically 38 C.F.R. § 4.115b provides that diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these, and where the diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. See also 38 C.F.R. § 4.14. Consequently, a higher or separate rating based on urinary frequency is not warranted. The Board also observes that the Veteran reported the need to wear absorbent materials due to his urinary frequency and indicated that he had two voiding accidents in 4 years. However, as there is no evidence that he needs to change his absorbent materials at least twice a day, a rating in excess of 30 percent based on urine leakage is not warranted. Further, as previously noted, to assign a separate rating based on such symptomatology is precluded by regulation. Thus, a higher or separate rating is not warranted for urine leakage. Moreover, while the Veteran reported painful urination and occasional blood in the urine at his January 2018, such is contradicted by objective examinations performed throughout the appeal period. Finally, the Board notes that the Veteran has scarring related to his kidney disability, which is described as a 23 cm by 1 cm scar on the torso in the left flank region for a previous left pyeloplasty, and a 10 cm by 0.5 cm transverse scar in the left lower quadrant of the abdomen for a previous left nephrectomy. However, while he reported that such surgical site and scarring is painful at his January 2018 Board hearing, such statements are contradicted by objective examinations conducted throughout the appeal period. Specifically, the September 2013 VA examiner found that such were superficial, nonlinear, benign, stable, not painful, and not tender, and the August 2014 and March 2019 VA examiners determined that such were not painful, unstable, or totaled an area equal to or greater than 39 sq. cm. Thus, the Board finds that a separate rating for the scarring associated with the Veteran’s kidney disability is not warranted. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected post-operative residuals of a left nephrectomy; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran’s post-operative residuals of a left nephrectomy. Therefore, the benefit of the doubt doctrine is not applicable to the instant claim and his claim for an increased rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, Counsel 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.