Citation Nr: 21039995 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-20 755 DATE: July 2, 2021 ORDER Entitlement to an initial rating of 30 percent for nephrolithiasis (claimed as kidney stones) is granted. REMANDED Entitlement to an initial compensable rating for a right-hand disability is remanded. Entitlement to service connection for a disorder manifested by joint pain is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's nephrolithiasis has been shown to be manifested by hypertension requiring continuous medication and at least 30 percent disabling under Diagnostic Code 7101. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 30 percent, but no higher, for nephrolithiasis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes 7101, 7508, 7509. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1981. This matter is on appeal from an April 2014 rating decision from a VA Regional Office (RO). As an initial matter, the Veteran submitted a timely notice of disagreement in September 2014 with the April 2014 rating decision. The notice of disagreement indicated his disagreement with the April 2014 decision pertaining to "joint pain." The Board notes that the April 2014 rating decision listed the claimed disorders pertaining to the right hip, cervical spine, lumbar spine, bilateral foot, bilateral upper extremities, and bilateral lower extremities separately, but also included the qualifier "claimed as joint pain (all), joint disability." In response to the September 2014 Notice of Disagreement, for reasons unknown, the RO issued a Statement of the Case on only the issue pertaining to the right hip, without attempting to clarify the matter with the Veteran. Therefore, the Board finds in favor of the Veteran that the September 2014 Notice of Disagreement encompassed all matters claimed as joint pain and the Board has recharacterized the issues as reflected on the first page of the decision. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Finally, the Veteran requested a hearing before a Veterans Law Judge of the Board on his April 2016 VA Form 9. However, he failed to reported for his scheduled Videoconference hearing in September 2019. Increased Rating 1. Nephrolithiasis The Veteran is seeking entitlement to an initial rating in excess of 10 percent, namely 30 percent, for his service-connected nephrolithiasis. Specifically, he argues that he has hypertension that requires daily medication. See September 2014 Notice of Disagreement. The Veteran's kidney stone condition is rated under 38 C.F.R. § 4.115b , Diagnostic Code 7508. Diagnostic Code 7508 pertains to nephrolithiasis and states that it is to be rated as hydronephrosis under Diagnostic Code 7509, except for recurrent stone formation requiring one or more of the following: (1) diet therapy; (2) drug therapy; (3) invasive or non-invasive procedures more than two times per year. In any of those circumstances, a 30 percent rating is assigned under Diagnostic Code 7508. Diagnostic Code 7509 for hydronephrosis provides for a 10 percent rating when there is only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent rating is assigned for frequent attacks of colic, requiring catheter drainage. A 30 percent rating is assigned for frequent attacks of colic with infection (pyonephrosis), kidney function impaired. Severe hydronephrosis is rated as renal dysfunction. Under Diagnostic Code 7509, for rating hydronephrosis, a maximum 30 percent schedular disability rating is assigned where there are frequent attacks of colic with infection and impaired kidney function. Severe disability is to be rated based on renal dysfunction. 38 C.F.R. § 4.115b. Renal dysfunction is rated under 38 C.F.R. § 4.115a. A 30 percent rating is warranted when albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema, or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is warranted when there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating requires persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating requires regular dialysis, or precluding of more than sedentary activity from one of the following: persistent edema and albuminuria; or blood urea nitrogen more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertensive vascular disease (hypertension and isolated systolic hypertension) when diastolic pressure is predominantly 100 or more, or, systolic pressure is predominantly 160 or more; or, as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure that is predominantly 110 or more; or, systolic pressure that is predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure that is predominantly 120 or more. A 60 percent rating is assigned where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Here, the Veteran was examined by VA in March 2014. At that time, the examiner indicated there was no evidence of renal dysfunction. Further, it was noted the Veteran experiences occasional attacks of colic with respect to his urolithiasis, but does not have current treatment for recurrent stone formation. The Veteran's blood pressure was noted to be 132/82, for three successive readings. No additional physical findings were noted on examination. See March 2014 VA Examination. A review of the Veteran's private treatment records, however, shows a diagnosis of hypertension, with a blood pressure reading of 146/100, and the use of Inderal once daily for hypertension, beginning in March 2007. See February 2008 Private Treatment Record. In the present case, the Board does not find that the Veteran is entitled to a rating in excess of 10 percent pursuant to Diagnostic Code 7508 as there is no evidence, he suffers from recurrent stone formation requiring diet therapy, drug therapy, or invasive or non-invasive procedures more than two times per year. See March 2014 VA Examination. Further, he is not entitled to a rating in excess of 10 percent under Diagnostic Code 7809 as the evidence does not show he suffers from any more than an occasional attack of colic. See March 2014 VA Examination. The Board has also considered whether he is entitled to a rating on excess of 10 percent due to severe renal dysfunction. In this respect, the Board finds a rating of 30 percent pursuant to the provisions of 38 C.F.R. § 4.115a is warranted. Specifically, the Veteran's private treatment records show a diastolic reading of 100 or more, and that he requires the continuous use of medication for his diagnosed hypertension, which is the criteria required for a 10 percent evaluation of hypertension under Diagnostic Code 7101. See February 2008 Private Treatment Record. As indicated in 38 C.F.R. § 4.115a, a 30 percent rating for renal dysfunction is warranted for hypertension at least 10 percent disabling under Diagnostic Code 7101. However, the evidence does not show that a rating in excess of 30 percent for renal dysfunction is warranted. Specifically, there is no indication the Veteran has constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101 (which requires diastolic pressure that is predominantly 120 or more). See March 2014 VA Examination and Private Treatment Records. Notably, the Veteran asserts that he has urinate several times a night. In this case, while the Veteran is competent to report symptoms associated with his nephrolithiasis because this requires only personal knowledge as it comes to him through the senses, he is not competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report from March 2014 and treatment records) directly address the criteria under which the disability is evaluated. Accordingly, the Board finds a rating of 30 percent is warranted, but no higher. To the extent the Veteran is seeking a rating in excess of 30 percent, the preponderance of evidence is against the claim, and a higher rating is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. Right hand disability The Veteran is seeking entitlement to an initial compensable rating for his service-connected right-hand disability. Specifically, he argues that his right hand is more severe than the currently assigned rating in that the only way to fix his hand would be to undergo fusion surgery. See September 2014 Notice of Disagreement. The Veteran also stated that the limitation of motion impacts his wrist. The Board notes that the Veteran was examined by VA in March 2014. However, in light of his contentions that his right-hand disability is more severe than indicated in the March 2014 examination, the Board finds that a new VA examination is needed to ascertain the current severity and manifestations of this disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown,6 Vet. App. 377 (1994). 2. Disorder manifested by joint pain The Veteran is seeking entitlement to service connection for disorders manifested by pain. He has identified that he suffers from pain in his right hip, cervical spine, lumbar spine, bilateral foot, bilateral upper extremities, and bilateral lower extremities, and has been diagnosed with corresponding disorders. Specifically, the March 2014 VA Examinations diagnosed the Veteran with degenerative joint disease (DJD) of the right hip; right foot contusion, bilateral DJD of the feet, bilateral pes cavum, and right foot calcaneal spur; degenerative disc disease (DDD) of the cervical spine, intravertebral disc syndrome (IVDS), and bilateral upper extremity radiculopathy; and, DDD of the lumbar spine, IVDS, and bilateral lower extremity radiculopathy. See March 2014 VA Examinations. However, in rendering etiology opinions, the VA examiners relied on the absence of in-service treatment or complaints for the claimed disorders. Moreover, there was no consideration of the diagnosis of rheumatism as noted in the private treatment records (see January 2009 Private Treatment Record) and, instead, each disorder was addressed individually instead of as a possible constellation of symptomology. As such, the Board finds the March 2014 VA examinations inadequate, and a remand is required. The matters are REMANDED for the following action: 1. Associate with the file all VA and private treatment for the Veteran dated from 2016 to the present that have not previously been obtained. 2. Schedule the Veteran for another VA examination with an appropriate clinician to determine the current nature and severity of the right-hand disability. 3. Schedule the Veteran for examination with an appropriate clinician to determine the nature and etiology of the claimed joint pain disorder, to include rheumatism. The Veteran's contentions should be considered. After a thorough review of the claims file, the examiner should address the following: (a.) Identify each currently diagnosed joint disorder (to include DJD of the right hip; right foot contusion, bilateral DJD of the feet, bilateral pes cavum, and right foot calcaneal spur; DDD of the cervical spine, IVDS and bilateral upper extremity radiculopathy; and, DDD of the lumbar spine, IVDS, and bilateral lower extremity radiculopathy) whether diagnosed during the physical examination or in the treatment records during the appellate period. If there are any other indications of pain affecting specific joints, provide an opinion as to whether the pain has resulted in a functional impairment which limits his earning capacity. (b.) Provide an opinion for each disorder, to include rheumatism and pain, as to whether it is at least as likely as not the disorder(s) began during or are etiologically related to his active duty service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. 5. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.