Citation Nr: 21067959 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 19-10 413 DATE: November 8, 2021 ORDER Entitlement to an increased disability rating in excess of 10 percent for hydronephrosis is denied. REMANDED Entitlement to a compensable disability rating for abdominal scar associated with hydronephrosis is remanded. Entitlement to an increased disability rating in excess of 50 percent for mood disorder with depressive features associated with hydronephrosis is remanded. FINDING OF FACT The Veteran's hydronephrosis is not manifested by frequent attacks of colic, requiring catheter drainage or frequent attacks of colic infection (pyonephrosis) resulting in impairment of kidney function. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating in excess of 10 percent for hydronephrosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, Diagnostic Code (DC) 7509. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from March 1954 to March 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) in July 2021. A copy of the transcript is associated with the record. The Board notes that additional VA treatment records, from May 1999 to May 2021, have been associated with the claims folder following the issuance of the March 2019 SOC. No waiver of initial review of the evidence by the Agency of Original Jurisdiction (AOJ) has been received. However, as these VA treatment records are not relevant to the issue of increased evaluation for hydronephrosis and in part duplicative, the Board finds that it may proceed to adjudication of this issue on appeal. Procedurally, the Board notes that the Veteran filed for an increased evaluation for his kidney condition in November 2016. A February 2017 rating decision proposed a reduction in the Veteran's evaluation for hydronephrosis to 0 percent. A June 2017 rating decision decreased the Veteran's evaluation for hydronephrosis to 10 percent effective September 1, 2017. The Veteran filed a timely notice of disagreement with the June 2017 rating decision but did not perfect the appeal; however, he filed a March 2018 supplemental claim for an increased evaluation for his hydronephrosis seeking a 30 percent evaluation and the May 2018 rating decision continued the 10 percent evaluation. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life and is based, as far as practicable, on average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to an increased disability rating in excess of 10 percent for hydronephrosis is denied. The Veteran contends that his kidney condition is more severe than contemplated by the assigned evaluation. The Veteran's hydronephrosis is currently rated under DC 7509 and evaluated as 10 percent disabling from September 1, 2017. Under DC 7509, a 10 percent evaluation is assigned when there is only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent evaluation is contemplated for frequent attacks of colic, requiring catheter drainage. A 30 percent evaluation is warranted for frequent attacks of colic with infection (pyonephrosis), kidney function impaired. Severe hydronephrosis or ureterolithiasis is to be rated as renal dysfunction. 38 C.F.R. § 4.115b, DCs 7509 and 7510; see also 38 C.F.R. § 4.115a (setting forth the criteria for rating renal dysfunction from 0 to 100 percent). A December 2016 VA examination report noted a diagnosis for hydronephrosis and a history of kidney stones since 1955, which had resolved. A May 2000 abdominal scan showed moderate left hydronephrosis and a December 2014 ultrasound showed left kidney extrarenal pelvis which subsequently required robotic surgery to remove extrarenal collection. Upon current examination, there was no evidence of bleeding or malignancy; and the Veteran denied gross hematuria or recurrent colic. There was also no evidence of continuous medication, renal dysfunction, urolithiasis, kidney infection and/or tumors. A March 2018 VA examination was obtained. The Veteran reported feelings of pain in his kidney. There was no evidence of continuous medication, renal dysfunction, recurrent stone formation, urolithiasis, or kidney infection. An abdominal scar was noted and measured 1cm x 1cm. The examiner indicated there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran's kidney conditions. During his July 2021 Board hearing, the Veteran reported his kidney condition had not changed since his March 2018 VA examination and that his symptoms were just as bad. He also reported taking continuous medication for this condition and yearly treatments with the VA but not requiring drainage or catherization for his kidneys. The Board finds that an evaluation in excess of 10 percent for the Veteran's hydronephrosis is not warranted. Both the December 2016 and March 2018 VA examinations did not demonstrate catheter drainage is required for his kidney condition and the Veteran confirmed this in his July 2021 hearing. A higher evaluation of 20 percent under DC 7509 is not warranted as the record shows no evidence of frequent attacks of colic, requiring catheter drainage. In sum, entitlement to an increased evaluation in excess of 10 percent is not warranted as there is no evidence of the record to suggest that the Veteran has experienced frequent attacks of colic, requiring catheter drainage under DC 7509. As the preponderance is against the claim, the benefit of the doubt rule is not applicable, and the claim is denied. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for abdominal scar associated with hydronephrosis is remanded. The Veteran contends that his abdominal scar is more severe than contemplated by the assigned evaluation. As indicated above, the last examination for the Veteran's kidney condition was in March 2018 which reflected a non-painful scar measuring 1cm x 1cm. At his July 2021 Board hearing, the Veteran reported daily pain on his abdominal scar particularly when wearing clothing all day. As such, a new examination is warranted to better assess the current severity of the Veteran's abdominal scar. 2. Entitlement to an increased disability rating in excess of 50 percent for mood disorder with depressive features associated with hydronephrosis is remanded. The Veteran contends that his psychiatric disorder is more severe than contemplated by the assigned evaluation. The Veteran was last afforded a VA examination in October 2017. He reported feelings of depression and hopelessness due to financial difficulty, as well as, increased irritability, decreased appetite, hypersomnia, and an attempted suicide by walking into traffic. He denied any current suicidal ideations. The examination demonstrated the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was scheduled for a VA examination in March 2018 but was deemed a no show. In his July 2021 Board hearing, the Veteran reported occasional suicidal ideations and psychiatric symptoms that are "up and down." He also reported recent and current medical treatments at the VAMC East Orange and Bricktown. In addition, he indicated that he was unable to attend his March 2018 VA examination because he was hospitalized for a mini stroke and subsequently informed the VA but that he was never rescheduled for another examination. The Board acknowledges that, under applicable law, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655 (b). In this case, however, a review of the record does not demonstrate correspondence between the Veteran and the VA regarding his missed examination or whether another examination was rescheduled. Accordingly, affording the Veteran the benefit of the doubt, the Board is unable to presume that the Veteran was properly notified of any upcoming rescheduled examination so as to permit the application of 38 C.F.R. § 3.655 (b). See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). As such, the Board finds that the Veteran should be afforded an additional opportunity to undergo an VA examination in connection with his appeal. Therefore, the RO should schedule the Veteran for the appropriate VA mental examination and should also make appropriate efforts to contact and confirm the appointment with the Veteran. Such efforts to contact the Veteran should be documented. The Veteran is hereby notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequence for failure to report for a VA examination without good cause for an original claim may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to his most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable. The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain outstanding VA and/or private treatment records, to include VAMC East Orange and VAMC Bricktown. All efforts to obtain such records should be documented in the claims file. 2. Schedule the Veteran for an appropriate VA scar examination to determine the current severity of his service-connected abdominal scar. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted, including a thorough examination of the Veteran's scar. All pertinent symptomatology and findings must be reported in detail. The VA examiner must identify all scars on the Veteran's abdominal region. For each scar identified, the examiner must measure the accurate size of the scar and indicate whether such scar is painful, unstable, deep or superficial, or linear or non-linear. The examiner is also asked to determine whether there is any disabling effect(s) caused by the Veteran's service-connected scars. 3. Schedule a VA mental disorder examination to assess the current nature and severity of the Veteran's psychiatric disorder. The entire electronic claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should describe the Veteran's symptoms and comment on the severity of the Veteran's psychiatric disorder and report all signs and symptoms necessary for evaluating the disability under the rating criteria. (Continued on the next page) The examiner is requested to attempt (to the extent possible) to distinguish the symptomatology associated with the Veteran's service-connected mood disorder from symptomatology caused by other psychiatric disabilities. Please note if it is not possible to attribute the Veteran's symptoms to each disability separately. 4. Then, readjudicate the appeal. If the claims remain denied, issue a supplemental statement of the case. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate 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.