Citation Nr: 21069384 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-47 985 DATE: November 18, 2021 ORDER Entitlement to a rating of 30 percent, but no higher, for a kidney stone disability is granted. FINDING OF FACT During the period on appeal, the Veteran's kidney stone disability has been characterized by recurrent stone formation requiring drug therapy and invasive or non-invasive procedures more than two times per year. CONCLUSION OF LAW The criteria for entitlement to a rating of 30 percent, but no higher, for a kidney stone disability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7508 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 3, 1989 to July 28, 2003 and was honorably discharged for VA purposes. The Veteran also served on active duty from July 29, 2003 to March 1, 2013 and was discharged under dishonorable conditions. This matter came before the Board of Veterans Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case has a lengthy procedural history, to include an appeal to the United States Court of Appeals for Veterans Claims ("the Court"). A February 2020 Board decision denied entitlement to a rating in excess of 10 percent for a kidney stone disability. In January 2021, the Court granted a Joint Motion for Remand (JMR), vacating the February 2020 Board decision and remanding the issue on appeal for readjudication in accordance with the JMR. A May 2021 Board decision remanded the issue on appeal for further development. Entitlement to a rating in excess of 10 percent for a kidney stone disability The Veteran contends that he is entitled to a higher rating for his kidney stone disability. The Veteran's kidney stone disability is currently rated at 10 percent disabling. Upon review of the evidence of record, the Board finds that a rating of 30 percent, but no higher, for the Veteran's kidney stone disability is warranted for the entire appeal period. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's kidney stone disability is rated pursuant to Diagnostic Code (DC) 7508, which is for nephrolithiasis (kidney stones). Under the DC, nephrolithiasis can be rated under DC 7509, for hydronephrosis, except for recurrent stone formation requiring one or more of the following: diet therapy, drug therapy, or invasive or non-invasive procedures more than two times a year, which is assigned a maximum 30 percent rating. 38 C.F.R. § 4.115b. Code 7509 also has a maximum rating of 30 percent but can also be rated as renal dysfunction. Id. A November 2014 VA examination diagnosed the Veteran with nephrolithiasis (kidney stones) and noted the date of diagnosis as 1994. The VA examiner noted the Veteran's history of recurring kidney stones and noted that his last episodes required pain medication. The examiner noted that the Veteran had four or five incidents of kidney stones during his honorable period of service and since discharge, he had two more episodes with the last one in 2013. During the last episode, he took pain medication and flushed with fluids until he passed the stone on his own. The Veteran had renal dysfunction identified as persistent proteinuria (albuminuria). In addition, the examiner identified previous urolithiasis, involving kidney and ureter, but with no evidence of treatment for recurrent stone formation in the kidney, ureter, or bladder and no current signs or symptoms of urolithiasis. There were no other findings associated with the diagnosed nephrolithiasis. April 2015 private medical records show the Veteran had kidney stone pain and a reported history of kidney stones from 1993 to 2012, with a surgical procedure in 1993. September 2015 private medical records show the Veteran underwent surgery for his left kidney stone. October 2015 private medical records show the Veteran underwent an outpatient procedure to remove kidney stones. In an October 2015 statement in support of his claim, the Veteran stated that he was being treated for kidney stones via laser and electroshock lithotripsy and a prescription of 60mg of potassium citrate 3 times per day. December 2015 private medical records show that the Veteran underwent another procedure for the removal of kidney stones. An August 2017 VA examination diagnosed the Veteran with kidney stones and ureterolithiasis (stones in the ureter). The VA examiner noted that the Veteran's recurrent kidney stone formation required invasive or non-invasive procedures. The examiner noted that the Veteran had a history of kidney stones with the most recent in September 2015, which required cystoscopy ureteroscopy with four procedures to remove a stone in December 2015. The Veteran reported that he had no current pain, infection, or problem associated with renal stones. He was not on a special diet and did not take calcium or a multivitamin that contained calcium. The treatment plan did not include taking continuous medication. There was no evidence of a renal dysfunction. Regarding urolithiasis, the examiner noted that the location of the calculi included the kidney and ureter, which required invasive/noninvasive procedures 0 to 1 time per year. There were no other findings associated with the diagnosed disabilities. In a March 2021 letter, the Veteran stated that he was on drug therapy for the prevention of kidney stone reformation, and that he was taking 5mg of potassium citrate once per day. June 2021 VA treatment records show a diagnosis of chronic kidney disease and that the Veteran was taking 5mg of potassium citrate daily to treat his kidney stones. An August 2021 VA examination diagnosed the Veteran with kidney stones and noted 1994 as the date of diagnosis. The August 2021 examiner noted that the Veteran required drug therapy and took potassium citrate once a day for treatment. The examiner further note that the last episode of kidney stones without complications was in May 2021. The examination noted the Veteran had proteinuria. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). The Veteran's kidney stones are currently rated as 10 percent disabling under DC 7508. To warrant the next highest rating of 30 percent, the evidence must show recurrent stone formation requiring one or more of the following: diet therapy, drug therapy, or invasive or non-invasive procedures more than two times a year. Here, the competent evidence of record shows that the Veteran has had a long history of kidney stones, requiring drug therapy and surgical intervention. Indeed, the Veteran underwent medical operations in September 2015, October 2015 and December 2015 to treat his kidney stones. Moreover, June 2021 VA treatment records and the August 2021 VA examination show that the Veteran requires drug therapy for the treatment of his kidney stones as he takes potassium citrate daily. These records are consistent with the Veteran's own statements. Given the above, the Board finds that the competent evidence of record shows that the Veteran's symptomatology more nearly approximates that of a severity commensurate with a history of kidney stones requiring drug therapy and invasive or non-invasive procedures more than two times per year. As noted, throughout the appeal p0eriod, the Veteran has required either invasive procedures for control and treatment of his kidney stones, and/or drug therapy. Further, the Board finds that the symptomatology has been consistent throughout the appeal period. Significantly, DC 7508 does not require all the symptoms to be present, but rather it is one or the other as specified by the use of the term "or." Therefore, while there may not be a showing of the need for invasive procedures and medications at all times during the appeal period, various symptomatology commensurate with a 30 percent disability rating has been present. Thus, the Board finds that a 30 percent disability rating has been approximated throughout the entire appeal period and a uniform rating is 2warranted. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board finds that the Veteran's overall disability picture more nearly approximates that of a 30 percent disability rating, which is the highest available under DC 7508 and all potentially applicable rating criteria. DC. Given the above, the Board finds that a 30 percent disability rating is warranted for the entire appeal period. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Akkad 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.