Citation Nr: 21004976 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-04 245 DATE: January 28, 2021 ORDER Service connection for a kidney condition, to include kidney stones, is granted. REMANDED Entitlement to an initial compensable disability rating, for smallpox vaccine residuals, is remanded. FINDING OF FACT The Veteran’s kidney stones manifested to a compensable degree within one year of his August 15, 2004 separation from service. CONCLUSION OF LAW The criteria for service connection for have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1993 to July 1997; from February 1999 to August 15, 2004; and from June 2008 to May 2009. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2004 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO (i) denied entitlement to service connection for a kidney condition, and (ii) granted service connection for scar, residual status post smallpox vaccine, and assigned a noncompensable disability rating. The Veteran’s notice of disagreement (NOD) was received in November 2015. The RO issued the statement of the case (SOC) in November 2016, and the Veteran’s VA Form 9, substantive appeal was received in January 2017. In October 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. To more accurately portray the nature of the Veteran’s claims, each issue has been recharacterized as set forth on the cover page of this decision. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted on a presumptive basis for certain chronic diseases, including kidney stones, if they are shown to have manifested to a degree of at least 10 percent within one year following the veteran’s separation from active military service. 38 U.S.C. §§ 1101 (3), 1112; 38 C.F.R. §§ 3.307, 3.309(a) (2016). 1. Service connection for a kidney condition, to include kidney stones The Veteran contends that his kidney stones are related to service. Initially, he has a current diagnosis of kidney stones. See, e.g. August 2005 private radiology billing statement; November 2019 private office visit report. Additionally, at his October 2019 Board hearing, the Veteran testified that he continues to produce, and pass kidney stones relatively regularly. As calculi of the kidney (i.e. kidney stones) is considered a chronic disease subject to presumptive service connection condition under 38 C.F.R. § 3.309(a), service connection may be warranted if, per 38 C.F.R. § 3.307, the kidney stones manifested to a degree of 10 percent or more disabling within the first post-service year. The Veteran sought treatment from a primary care doctor for abdominal pain on August 11, 2005. See Correspondence dated January 2020; see also private radiology and primary care notes received in January 2020. The treating physician ordered lab work and a sonogram; based on the lab work and sonogram results, the examiner diagnosed abdominal pain and kidney stones. See Radiology billing statement dated October 2005. Specifically, a September 2005 computed tomography (CT) scan revealed renal stone with right flank pain. The Veteran’s kidney stones are thus shown to have manifested no later than August 11, 2005—within one year of his August 15, 2004 separation from service. The dispositive issue, then, is whether the kidney stones manifested to a compensable degree (10 percent or more) at that time. Kidney stones are rated under Diagnostic Code (DC) 7508. Under DC 7508, kidney stones (nephrolithiasis) is rated as hydronephrosis except when there are recurring stone formations that require one or more of the following: (1) diet therapy, (2) drug therapy, and/or (3) invasive or non-invasive procedures more than two times a year; in which case a 30 percent evaluation will be assigned. 38 C.F.R. § 4.115b, DC 7508. Under DC 7509, which applies to hydronephrosis, a 10 percent rating is warranted for only an occasional attack of colic, not infected and not requiring catheter drainage; a 20 percent rating is warranted for frequent attacks of colic, requiring catheter drainage; and a maximum 30 percent rating is warranted for 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. Colic is defined in Dorland’s Illustrated Medical Dictionary 31st edition, p. 389, as “acute abdominal pain, usually intermittent visceral pain with fluctuations that correspond to smooth muscle peristalsis.” Resolving doubt in the Veteran’s favor, the Veteran’s calculi of the kidney were at least 10 percent disabling within the first post-service year. The private medical records show that the Veteran had abdominal pain associated with kidney stones, specifically noted as causing “right flank pain,” when he presented for treatment on August 11, 2005. The kidney stone-related abdominal pain was not an isolated, acute event, and can rationally be characterized as no less than “occasional.” With consideration of the Dorland’s Illustrated Medical Dictionary definition of colic, and considering that the August 2005 abdominal pain is shown to be related to the kidney stones, it is reasonable to infer that the abdominal pain experienced by the Veteran is the type of pain contemplated within DC 7509 as warranting no less than a 10 percent disability rating. In light of the foregoing, the weight of the evidence demonstrates that the Veteran’s kidney stones manifested to a compensable degree within one year of his August 15, 2004 separation from service. As so, service connection for kidney stones is warranted on a presumptive basis. REASONS FOR REMAND 2. Entitlement to an initial compensable disability rating for smallpox vaccine residuals The Veteran contends that he is entitled to an increased disability rating for residuals of an in-service smallpox vaccination. The Veteran was afforded a VA scars/disfigurement examination in November 2014. Based on the results of that examination, the Veteran was assigned a noncompensable disability rating. However, the Veteran contends that an in-service smallpox vaccine has caused residuals unrelated to scarring, including encephalitis. Initially, the Veteran in fact received a smallpox vaccine during service, in January 2003. He reports that he was ill for several days after he was given the vaccine, and now experiences severe cognitive impairment, including memory loss, difficulty concentrating, and difficulty staying focused; all of which he contends is a result of his adverse reaction to the vaccine. See generally, Board hearing transcript, p. 6-11. Service treatment records (STRs) show that in early February 2003, the Veteran was treated for “fever, vaccine reaction.” He reported a headache, earaches and a burning sensation in his eyes, and his friends later told him he was “delirious” and was talking to himself. The treating clinician did not suspect encephalitis because of the Veteran’s improved condition following use of antipyretics. The Veteran was discharged after an overnight stay, and a note from the morning of discharge shows diagnosis of vaccine adverse reaction and vasovagal nausea. The discharge note further indicates that he had muscle spasms, fever, and lethargy, all of which was thought to be secondary to the smallpox vaccination. The Veteran was not afforded a VA examination to determine whether the in-service smallpox vaccine caused any residuals, other than the VA scar examination. Notably, the November 2014 VA examiner noted “There is no other medical issues/residuals secondary smallpox vaccine other than left upper arm scar. See DBQ Mental.” The finding was based on review of medical literature, medical records review, and clinical experience. However, the examination report does not indicate that the finding was based on the Veteran’s own account of the history of vaccine residuals. For that reason, remand for another examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address whether the Veteran’s in-service smallpox vaccine, and his adverse reaction thereto, resulted in any current disability. The entire claims file, including a copy of this remand and the hearing transcript, must be reviewed by the examiner in conjunction with the examination. Then, the examiner should address the Veteran’s contentions regarding his claimed current disabilities that he believes are manifestations of the smallpox vaccine and the adverse reaction thereto. For each current disability diagnosed, the examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) related to the Veteran’s in-service smallpox vaccine and his adverse reaction to the vaccine. (Continued on the next page)   Each opinion should be supported by a thorough rationale which addresses the medical evidence, including the VA treatment records and the private treatment records; and the lay evidence, including the Veteran’s own account of the vaccine residuals. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.