Citation Nr: 21006795 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 12-24 194 DATE: February 5, 2021 ORDER Entitlement to an initial rating of 10 percent disabling for nephrolithiasis related to service-connected Crohn’s disease is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 20, 2015, is remanded. FINDING OF FACT For the period on appeal, the Veteran’s urinary calculi/kidney stones have been manifested by no more than occasional attacks of colic, and have not been required catheterization, diet therapy, drug therapy, or invasive or non-invasive procedures more than two times per year. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, for kidney stones have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115b, Diagnostic Code 7509. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California (Agency of Original Jurisdiction (AOJ)). In January 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of the hearing is associated with the claims folder. In May 2017 and July 2019, the Board remanded the appeal for further development. Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. In cases involving a claim for an increased rating, VA’s primary focus is upon the current level of disability. This will include a review of medical and lay evidence of record beginning one year prior to the time Veteran requested an increased rating. VA will also review the history of the Veteran’s disability in order to ensure that the decision regarding the current disability rating accounts for all the prior treatment and the severity of the disorder. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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 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). 1. Entitlement to a compensable rating for nephrolithiasis related to service-connected Crohn’s disease. Effective October 2008, the Veteran has been granted service connection for nephrolithiasis combined with his Crohn’s Disease. See 38 C.F.R. § 4.115b, DC 7508. However, he has since disagreed with his rating. Following a review of the record, the Board finds that an initial 10 percent rating is warranted for the Veteran's urinary calculi or kidney stones, for the period on appeal, but that at no point since the effective date of service connection is a rating higher than 10 percent warranted. The Veteran’s nephrolithiasis is evaluated under 38 C.F.R. § 4.115b, Diagnostic Codes 7508 and 7510, both of which have identical criteria. These codes provide a 30 percent rating for nephrolithiasis or ureterolithiasis productive of current stone formation requiring diet therapy, drug therapy, or invasive or noninvasive procedures more than two times per year. In all other cases, the disabilities are to be rated as hydronephrosis under 38 C.F.R. § 4.115b, Diagnostic Code 7509. Under this code, 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. A maximum 30 percent rating is warranted for frequent attacks of colic with infection (pyonephrosis) and impaired kidney function. The Veteran underwent a VA examination in October 2020. Since diagnosis in 2000 he had a total of 6 episodes of kidney stones, 3 of which required procedures. He did not take medication for the disability. He was not treated with diet therapy. There were no symptoms or attacks of colic. There were no infections. The examiner noted that the Veteran’s kidney stones is “currently quiescent and asymptomatic.” Compensable ratings are available for episodes of colic or for stone formation requiring diet therapy, drug therapy, or invasive or noninvasive procedures more than two times per year. Under 38 C.F.R. § 4.115b, DC 7508, nephrolithiasis must be rated as hydronephrosis except for recurrent stone formation requiring diet therapy, drug therapy, or procedures more than two times per year. In this instance, there has been no evidence of recurrent stone formation which required diet or drug therapy, and, while he has had three procedures, he has not had more than two procedures per year. For these reasons, the Board finds that a compensable evaluation is not warranted for the Veteran’s nephrolithiasis under 38 C.F.R. § 4.115b, DC 7508. Therefore, the Board will consider the Veteran’s condition under the rating criteria for hydronephrosis. See 38 C.F.R. § 4.115b, DC 7509. Under DC 7509, a 10 percent disability rating is assigned for hydronephrosis manifested by only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent disability rating is warranted where there are frequent attacks of colic and catheter drainage is required. A maximum schedular 30 percent disability rating is assigned where there are frequent attacks of colic with infection and impaired kidney function. Severe hydronephrosis is to be rated based on renal dysfunction. 38 C.F.R. § 4.115b, DC 7509. A 10 percent rating under DC 7509 requires the Veteran to have an occasional attack of colic. The Board finds that a higher 10 percent rating is warranted based evidence showing kidney stones with occasional episodes of colic. In this regard, imaging consistently showed the presence of small, nonobstructing stones in the kidney, ureter, and/or bladder, bilaterally, and the Veteran had a history of back pain and painful urination. The VA treatment records also indicate that he had occasional attacks of colic throughout the period on appeal. Thus, resolving doubt in favor of the Veteran, the Board finds that an initial 10 percent rating is assignable for occasional episodes of colic. 38 C.F.R. § 4.119, Diagnostic Codes 7508, 7509. Nevertheless, the Board finds that at no time is a rating higher than 10 percent warranted. Here, VA treatment records noted no more than occasional attacks of colic, and do not otherwise indicate stones requiring catheter drainage. The VA treatment records also show that the Veteran was not taking continuous medication and had not received treatment for recurrent stone formation. Thus, the Board finds that urinary calculi/kidney stone disability picture is entirely consistent with and accounted for by the 10 percent rating for occasional attacks of colic, and that a higher rating is not warranted for recurrent stones requiring diet therapy. 38 C.F.R. § 4.119, Diagnostic Code 7508. In sum, on review of the medical and lay evidence of record, the Board finds that the preponderance of the evidence is against awarding a rating higher than 10 percent for the Veteran's urinary calculi. REASONS FOR REMAND Entitlement to a TDIU prior to November 20, 2015, is remanded. A claim for a TDIU is part of an increased rating claim when such a claim is expressly raised by a veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran had a pending increased rating claim for his nephrolithiasis and a claim for TDIU was expressly raised by the Veteran. See May 2009 Rating Decision. A February 2017 rating decision granted a TDIU effective September 6, 2016. In an April 2019 rating decision, the RO awarded an earlier effective date of November 20, 2015, for TDIU. The RO based the effective date on the date of his November 2015 Crohn’s Disease VA examination. In an October 2020 Supplemental Statement of the Case (SSOC), the RO denied TDIU on an extraschedular basis, as well as denying referral to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis, for the period prior to November 20, 2015. Total disability ratings are authorized for any disability or combination of disabilities for which VA’s Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the claimant does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). To date, the RO has denied the appellant a TDIU because he has not met the schedular percentage requirements for the period on appeal; the RO has not yet adequately adjudicated the question of whether the appellant’s service-connected disabilities, alone, actually render him unable to secure or follow substantially gainful employment. In his January 2017 Board hearing, the Veteran testified that he was removed from a supervisory position and subsequently submitted an early retirement due to the functional impacts of his service-connected disability. He also submitted a June 2009 Certification of Employee’s Health Care Provider for Employee’s Serious Illness indicating a level of functional impairment due to his service-connected Crohn’s Disease. Based on this evidence, the Board finds that the RO should obtain his employment records, to include his retirement application and related documents, from the United States Post Office (USPS). The Board also finds that submission to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) may be warranted. Evidence of record indicated that the Veteran’s service-connected disabilities impacted his ability to secure and follow a substantially gainful occupation. Based on the job requirements related to the Veteran’s particular career field, the Veteran’s service connected disabilities, the functional and occupational limitations that are medically documented, the Veteran’s educational and vocational specialization, and the fact that the Veteran has not worked since August 31, 2012, there is currently enough evidence to refer the claim to the Director of Compensation Service for consideration of an extra-schedular rating of unemployability. The matters are REMANDED for the following action: 1. Contact the Veteran and provide him with an additional opportunity to complete VA Forms 21-4192, Requests for Employment Information in Connection with Claim for Benefits, for the USPS. Then, undertake appropriate development. 2. After completing the requested action, and any additional notification and/or development deemed appropriate, the RO should readjudicate the claim for a TDIU prior to November 20, 2015. The RO should specifically address whether referral to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) and provide a rationale for the decision. (continued on the next page) 3. If the benefits sought on appeal remain denied, the RO should furnish to the appellant and his representative a supplemental SOC that includes citation to and discussion of any additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them the appropriate time for response before the claims file is returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.