Citation Nr: 21076615 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-14 787A DATE: December 27, 2021 ORDER A compensable rating for a service-connected kidney disability is denied. FINDING OF FACT From the period beginning August 27, 2012, the Veteran's kidney disability is not manifested by recurrent kidney stone formation requiring diet therapy, drug therapy, and/or invasive or non-invasive procedures more than two times per year, and does not have symptoms of hydronephrosis. CONCLUSION OF LAW From the period beginning August 27, 2012, the criteria for a compensable rating for a service-connected kidney disability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.115(a) , 4.115(b), Diagnostic Code 7509, 7510 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from May 1965 to July 1968. The Veteran testified before the undersigned at a hearing held in November 2018; a transcript of that hearing is of record. In November 2020, the Board remanded the issue to obtain a new VA examination as the December 2019 VA examination did not compile with the June 2019 Board remand directives. In August 2021 the Veteran was afforded a new VA examination and provided a VA medical opinion. Therefore, the Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Rating for a service-connected kidney disability. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. 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. The Veteran's disability is currently rated as noncompensable under Diagnostic Code (DC) 7510. Under DC 7510, ureterolithiasis is rated as hydronephrosis except for recurrent kidney stone formation requiring (1) diet therapy, (2) drug therapy, and/or (3) invasive or non-invasive procedures more than two times per year, which is rated 30 percent. 38 C.F.R. § 4.115(b), DC 7510. Hydronephrosis, which is a swelling of the kidney, is rated under DC 7509. 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. § 4.115(a). From the period beginning August 27, 2012. From the period beginning August 27, 2012, the preponderance of the evidence is against establishing a compensable rating for the Veteran's service-connected kidney disability. In January 1969, the Veteran was granted service connection for a left kidney contusion he sustained during service due to blunt force trauma to his left flank and assigned a noncompensable evaluation. See 38 C.F.R. § 4.115b, DC 7510. In August 2012, the Veteran filed the instant claim seeking a compensable evaluation for his service-connected kidney. See 38 C.F.R. § 4.115b, DC 7510. In August 2013, the Veteran underwent a VA examination, and the resulting examination report concluded that, despite the Veteran's contentions, his post-service kidney stones are unrelated to the left kidney contusion he suffered during his military service. The August 2013 VA examiner noted that the Veteran's post-service kidney stones necessitated a 1977 procedure involving the removal of urethral stones and the enlargement of the urethra. The August 2013 VA examiner further noted that invasive or non-invasive procedures were required on average of 0-1 times per year, but that the Veteran's kidney condition currently does not manifest any signs or symptoms of urolithiasis, renal dysfunction, urinary tract infections, or kidney infections, nor does it impact his ability to work. Recurrent kidney stones and hydronephrosis were not noted on examination. The Veteran also reported episodic abdominal or left flank pain at the examination. In June 2015, the Veteran submitted a statement indicating that he informed his primary doctor of occasional attacks of the colic due to his service-connected kidney disability. In April 2017, the Veteran underwent a second VA examination, and the resulting examination report offered no opinion as to whether the Veteran's post-service kidney stones are related to the left kidney contusion he suffered during his military service. The April 2017 VA examiner noted that invasive or non-invasive procedures were required on average of 0-1 times per year. The examiner also indicated that the Veteran's kidney condition currently does not manifest any signs or symptoms of urolithiasis, renal dysfunction, voiding issues, hematuria, urinary tract infections, or kidney infections, nor does it impact his ability to work. Recurrent kidney stones and hydronephrosis were not noted on examination. The April 2017 VA examiner did note the Veteran's reports of intermittent mid-abdominal pain occurring on average twice per month with a duration of one to two hours, as well as intermittent left flank pain occurring on average once per month with an uncertain duration, both of which tend to subside spontaneously. In October 2018, the Veteran's private physician, Dr. G, indicated that the Veteran was having intermittent abdominal pain, which Dr. G reported to be considered colic. The Veteran testified at his November 2018 Board hearing that he continues to suffer from recurrent back and abdominal pain approximately two to three times per year which he believes constitutes renal colic caused by his service-connected kidney disability, frequent urination; and some episodes of urinary incontinence. In December 2018, the VA treatment records indicate that the Veteran reported an occasional attack of colic of the renal kind. The Board notes that a June 2019 Board remand determined both the August 2013 and April 2017 VA examinations inadequate for adjudication purposes and remand the Veteran's claim for a new VA examination. The June 2019 Board remand found that both VA examination reports failed to adequately address the Veteran's claims that his abdominal and flank pain constitute compensable manifestations of his service-connected kidney disability, to include renal colic. In December 2019, the Veteran underwent an additional VA examination, as instructed by the June 2019 Board remand, for his kidney disability. The examiner opined that the Veteran's colic pain is subjective only and there is no objective evidence to support his claim. The examiner stated that "while there is evidence of treatment and care for a renal contusion during service, there is no evidence that this has continued to cause problems for the Veteran following discharge from service. A nexus has not been established." See December 2019 VA examination. Additionally, at the examination, the Veteran reported that he is not receiving any current treatment or care for his bruised kidney condition. He indicated that his current symptoms included intermittent colic pain to left back/abdomen area. The examiner also indicated that the Veteran's kidney condition currently does not manifest any signs or symptoms of urolithiasis, renal dysfunction, hematuria, urinary tract infections, or kidney infections, nor does it impact his ability to work. Recurrent kidney stones and hydronephrosis were not noted on examination. The Board notes that a November 2020 Board remand determined the December 2019 examination inadequate for adjudication purposes and remanded the Veteran's claim for a new VA examination. The November 2020 Board remand found that the December 2019 VA examination report failed to adequately address the June 2019 Board remand directives. A new VA examination was necessary to determine if the Veteran's current pain was related to his service-connected kidney disability. In August 2021, the Veteran underwent an additional VA examination, as instructed by the November 2020 Board remand, for his kidney disability. The examiner opined that the Veteran's current kidney pain is less likely than not related to his service-connected kidney disability. The VA examiner adequately addressed the November 2020 Board remand directives and discussed the Veteran's reports of abdominal and/or left flank as mentioned in the following instances: (1) indicated by the April 2017 VA examination report; (2) the Veteran's reports of abdominal pain during his November 2018 Board hearing testimony; and (3) Dr. G's October 2018 statement regarding the Veteran's intermittent abdominal pain. The August 2021 VA examiner stated that "the Veteran's current abdominal pain and voiding dysfunction could be related to multiple conditions rather than his kidney injury." The VA examiner also indicated the following: "[i]n men, there are many potential etiologies of voiding dysfunction. Common causes of obstructive symptoms include an enlarged prostate due to benign prostatic hyperplasia (BPH) or prostatitis." The VA examiner noted that the Veteran's kidney condition currently does not manifest any signs or symptoms of urolithiasis, renal dysfunction, hematuria, urinary tract infections, or kidney infections, nor does it impact his ability to work. Recurrent kidney stones and hydronephrosis were not noted on examination. Accordingly, the Board finds that for the period on appeal beginning August 27, 2012, the Veteran service-connected kidney disability does not more closely approximate the schedular criteria for the assignment of a compensable disability rating under DC 7510. Under DC 7510, ureterolithiasis is rated as hydronephrosis except for recurrent kidney stone formation requiring (1) diet therapy, (2) drug therapy, and/or (3) invasive or non-invasive procedures more than two times per year, which is rated 30 percent. 38 C.F.R. § 4.115b, DC 7510. The evidence of record does not indicate that the Veteran has not had any recurrent kidney stone formation requiring diet therapy, drug therapy, and/or invasive or non-invasive procedures more than two times per year to warrant a compensable rating. Further, the Board notes that the August 2013 and April 2017 VA examiner's indicated that invasive or non-invasive procedures were required on average of 0-1 times per year. Additionally, the kidney stone procedure in 1977 was the only kidney procedure noted. Thus, this prevents the Board from categorizing this as recurrent stone formation. Even if it were to qualify as recurrent stone formation, the treatment did not occur with a frequency of more than two times per year; thus, it would not warrant a rating of 30 percent under DC 7510. Thus, throughout the period on appeal, beginning August 27, 2012, the medical evidence indicates that the Veteran has not had any recurrent kidney stone formation, to warrant a compensable rating for his service-connected kidney disability under DC 7510. The Board has considered whether a separate and/or higher rating may be assigned for the Veteran's service-connected kidney disability. There is no evidence, however, that the Veteran's kidney disability would be better classified under a different diagnostic code in 38 C.F.R. § 4.104. Hydronephrosis, which is a swelling of the kidney, is rated under DC 7509. 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. As noted above, the Veteran does not and has not had a diagnosis of hydronephrosis. The Board also finds that although the Veteran can describe observable symptoms, such as pain, his statements cannot be used to determine the etiology of his kidney pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). There is no evidence that the Veteran has the medical education and training required to make competent clinical diagnosis, or to attribute such a diagnosis to specific events or injuries. The Board acknowledges that in June 2015, the Veteran submitted a statement indicating that he informed his primary doctor of occasional attacks of the colic due to his service-connected kidney disability. The Veteran also asserted at his November 2018 Board hearing that he continues to suffer from abdominal pain approximately two to three times per year which he believes constitutes renal colic caused by his service-connected kidney disability. Further, in December 2018, VA treatment records indicated that the Veteran reported an occasion attack of colic of the renal kind. As such, the Board finds the Veteran's statements probative with regard to establishing his current symptoms and pain, but finds little probative value with regard to establishing an etiology, linking the current pain to his service-connected kidney disability. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. The August 2021 VA examiner provided an opinion that the Veteran's current pain has not been found to be related to his service-connected kidney disability. The examiner's opinion was based upon accurate facts and sound reasoning and is consistent with the contemporaneous evidence. Additionally, the VA examiner correctly addressed the November 2020 Board remand directives, addressing (1) indicated by the April 2017 VA examination report; (2) the Veteran's reports of abdominal pain during his November 2018 Board hearing testimony; and (3) Dr. G's October 2018 statement regarding the Veteran's intermittent abdominal pain. Therefore, the Veteran's lay statements of pain are outweighed by more contemporaneous medical evidence of record, which does not show a diagnosis of hydronephrosis or medical evidence of an occasional attack of colic. In sum, the evidence of record does not indicate that the Veteran has had diet or drug therapy, or that he has had invasive or non-invasive procedures in excess of two times in any given year. The Board notes that the Veteran had a kidney procedure in 1977 but no additional procedures since then. As such, a compensable rating under DC 7510 is not warranted. There is no also medical evidence in the record that the Veteran has hydronephrosis. Accordingly, a compensable rating is not warranted under DC 7509. 38 C.F.R. § 4.115b. (Continued on the next page) Therefore, as the preponderance of the evidence is against a compensable rating from August 27, 2012, the benefit-of-the-doubt doctrine does not apply, and the claim for a compensable rating for the Veteran's service-connected kidney disability is not warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.