Citation Nr: A25025035 Decision Date: 03/18/25 Archive Date: 03/18/25 DOCKET NO. 240313-424116 DATE: March 18, 2025 ORDER Entitlement to an initial compensable rating of 20 percent for service-connected neoplasm of the kidney, status post left partial nephrectomy is granted. Entitlement to a compensable rating for service-connected lower abdomen scars resulting from status post partial left kidney nephrectomy is denied. REMANDED Entitlement to service connection for frequent urination, to include as secondary to service-connected neoplasm of the kidney, status post left partial nephrectomy is remanded. FINDINGS OF FACT 1. The Veteran's residuals of her neoplasm of the kidney, status post left partial kidney nephrectomy is predominantly manifest by voiding dysfunction which requires the use of absorbent material which must be changed less than two times a day. 2. The Veteran's lower abdomen scars resulting from status post partial left kidney nephrectomy measure at the longest and widest 2cm x .2cm and cover an area of 1.4 cm2 CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating of 20 percent for service-connected neoplasm of the kidney, status post left partial nephrectomy have been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 7528 (2024). 2. The criteria for entitlement to a compensable rating for service-connected lower abdomen scars resulting from status post partial left kidney nephrectomy have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.31 (2021), 4.118, Code 7804 (2021); 83 Fed. Reg. 32592 (July 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2004 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2023 and December 2023 rating decisions by the Department of Veterans Affairs (VA). In the March 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. The Board notes at the outset that in the Veteran's March 2024 VA Form 10182, the Veteran indicated she was appealing May 2023 and December 2023 rating decisions. The May 2023 rating decision addressed and denied the Veteran's claims for compensable ratings for neoplasm of the kidney, status post partial left kidney nephrectomy and residual scars from the same. The Veteran requested a higher-level review of this May 2023 decision, which higher level review was issued in June 2023. See VA Form 20-0996; June 2023 rating decision. In August 2023 the Veteran filed a claim for service connection for urinary frequency and also claims for compensable ratings for neoplasm of the kidney, status post partial left kidney nephrectomy and residual scars resulting from the same. All three were denied in the December 2023 rating decision. Therefore, the Board will consider the Veteran's claims for compensable rating for neoplasm of the kidney and resulting scars as continuously pursued since the May 2023 rating decision for the December 2023 rating decision. See 38 C.F.R. §§ 3.2500 (h), 3.2500 (f). Therefore, the Board will only consider the evidence of record at the time of the December 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of service connection for urinary frequency, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Increase Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Compensable rating of 20 percent for service-connected neoplasm of the kidney, status post left partial nephrectomy. The Veteran contends she is entitled to an initial compensable rating for her neoplasm of the kidney, status post partial left kidney nephrectomy. In support of her claim the Veteran noted she has to get CTs every six months and see a doctor every three months for her status post partial left kidney nephrectomy. The Veteran is currently rated at 0 percent for her neoplasm of the kidney, status post left partial nephrectomy under Diagnostic Code 7528. Under Diagnostic Code 7528, a 100 percent rating is warranted for six months following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure. After six months, the Veteran will undergo a new examination. Any changes in evaluation based upon this examination or any examination thereafter shall be subject to the provisions of 38 U.S.C. § 3.105 (e). If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115 (a)-(b), diagnostic Code 7528. The Veteran's partial left kidney nephrectomy occurred in 2011, and the Veteran's initial claim was filed February 2023 well more than six months after her partial left kidney nephrectomy and therefore the Veteran is ineligible for the temporary 100 percent disability rating. Voiding dysfunction is rated pursuant to the criteria specified in 38 C.F.R. § 4.115a. Voiding dysfunction can be rated based on urine leakage, urine frequency, or obstructed voiding. These provisions are expressed using the disjunctive, indicating that a veteran is to be rated under only one of the three categories of urine leakage, urinary frequency, or obstructed voiding. Therefore, the Board may separately address urine leakage, urinary frequency, and/or obstructed voiding, and rate the disability under whichever category results in the highest rating. The assignment of separate ratings for urine leakage, urinary frequency, or obstructed voiding would be pyramiding and is not permissible under 38 C.F.R. § 4.14. Urine leakage that requires the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent rating; a 40 percent rating is assigned when the absorbent material must be changed 2 to 4 times daily; and, a 60 percent rating is assigned when the absorbent material must be changed more than 4 times per day. Urine frequency resulting in a daytime voiding interval between two and three hours, or awakening to void two times per night, warrants a 10 percent rating. A daytime voiding interval between one and two hours; or, awakening to void three to four times per night warrants a 20 percent rating; and, a daytime voiding interval of less than one hour; or, awakening to void five or more times per night warrants a 40 percent rating. For obstructed voiding, a 0 percent rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc, (2) uroflowmetry; markedly diminished peak flow rate (less than 10cc/sec), (3) recurrent urinary tract infections secondary to obstruction, (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is assigned for urinary retention requiring intermittent or continuous catheterization. The criteria for rating dysfunctions of the genitourinary system were amended effective November 14, 2021. (38 C.F.R. §§ 4.115A , 4.115B). While the criteria by which voiding dysfunction is rated remain unchanged, the criteria by which renal dysfunction is rated was amended, effective November 14, 2021. Because the Veteran's claim was filed after November 14, 2021, the Board will consider the Veteran's claim under the amended criteria. Under the rating criteria in effect as of November 14, 2021, renal dysfunction warrants a noncompensable rating with a glomerular filtration rate (GFR) from 60 to 89 mL/min/1.73 m2 and either recurrent red blood cell (RBC) casts, white blood cell (WBC) casts, or granular casts for at least 3 consecutive months during the past 12 months; or GFR from 60 to 89 mL/min/1.73 m2 and structural kidney abnormalities (cystic, obstructive, or glomerular) for at least 3 consecutive months during the past 12 months; or GFR from 60 to 89 mL/min/1.73 m2 and albumin/creatinine ratio (ACR) 30 mg/g for at least 3 consecutive months during the past 12 months. A 30 percent rating applies to chronic kidney disease with GFR from 45 to 59 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. A 60 percent rating applies to chronic kidney disease with GFR from 30 to 44 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. An 80 percent rating applies to chronic kidney disease with GFR from 15 to 29 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. A 100 percent rating applies to chronic kidney disease with GFR less than 15 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months; or requiring regular routine dialysis; or eligible kidney transplant recipient. See 38 C.F.R. § 4.115A. GFR, estimated GFR (eGFR), and creatinine-based approximations of GFR will be accepted for evaluation purposes when determined to be appropriate and calculated by a medical professional. The Board finds that the Veteran's predominant residuals of her status post partial left kidney nephrectomy are voiding dysfunction based on urine leakage. Throughout the period on appeal the Veteran has undergone VA examinations in April 2023, October 2023, and December 2023. The April 2023 VA examination noted the Veteran experiences no residuals of her partial left kidney nephrectomy. The April 2023 examiner noted no renal dysfunction, no hypertension or heart disease, no kidney or uretal calculi, no recurrent urinary tract or kidney infection, and no voiding dysfunction. The October 2023 VA examiner, however noted the Veteran experiences voiding dysfunction in the form of urinary leakage. The October 2023 VA examiner noted the Veteran requires wearing absorbent material which must be changed less than two times per day. The examiner noted the Veteran wears pads at night to prevent leakage. The Veteran has nighttime awakening to void three to four times per night and daytime voiding intervals between one and two hours. The October 2023 VA examiner also noted the Veteran experiences renal dysfunction and the Veteran experiences calculi of the kidney, but no stricture of the ureter, and has had kidney stones more than 2 in the past year requiring either invasive or non-invasive treatment. The Veteran also reported experiencing urinary tract/kidney infection symptoms and urinary frequency. The December 2023 VA examiner noted the Veteran did not currently report any renal dysfunction or incontinence but noted that the Veteran's VA treatment records and past VA examinations noted voiding dysfunction. The Veteran also had laboratory blood work taken in connection with her renal dysfunction in September 2023 and December 2023, both showed normal GFR of 78 and 89 respectively, and the Veteran's BUN and Creatinine ratios were noted to be within normal ranges. The Board affords the October 2023 VA examination greater probative value than the April and December 2023 VA examinations. The October 2023 VA examination provided the most complete and accurate history of the Veteran's neoplasm of the kidney, status post partial left kidney nephrectomy. The December 2023 VA examination noted in the evidence reviewed section that the Veteran had a hysterectomy in 2021, but then noted in the section specifically addressing whether the Veteran had a hysterectomy that she had not had one. The April 2023 VA examiner did not note the Veteran's 2021 hysterectomy at all. Because of the inaccurate factual premises these examinations were based on the Board affords them no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Monzingo v. Shinseki, 26 Vet. App.?97, 107 (2012) (per curiam) (if an opinion "is based on an inaccurate factual premise, then it is correct to discount it entirely."). Accordingly, the Board affords the October 2023 VA examination greater probative value. Because the October 2023 VA examination notes the Veteran requires the use of absorbent material which requires changing less than two times per day, she meets the 20 percent disabling criteria under voiding dysfunction, urinary leakage. Thus, and resolving all doubt in the Veteran's favor, the Veteran is entitled to an initial 20 percent rating for her service-connected neoplasm of the kidney, status post partial left kidney nephrectomy. 2. Compensable rating for service-connected lower abdomen scars. The Veteran is seeking a higher rating because she believes her scars warrant a compensable rating. In support of her contention the Veteran stated that her scars cause her body positivity issues. See May 2023 VA Form 20-0996. The Veteran's status post partial left kidney nephrectomy scars are rated under Diagnostic Code 7802. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The Board notes that the Veteran's claim was filed in February 2023 and therefore the Board will use the amended criteria to evaluate the Veteran's condition. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments. The Board finds that the evidence of record persuasively weighs against the assignment of a compensable evaluation under Diagnostic Code 7802 because the Veteran's status post partial left kidney nephrectomy scars are not manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. The Veteran has undergone three VA examinations in connection with her scars in April 2023, October 2023, and December 2023. All three examinations differ on the exact number of scars the Veteran has and their length and width. All three VA examiners note that the Veteran is a poor historian regarding which scars resulted from her partial left kidney nephrectomy and her 2021 hysterectomy. Further, while all three examinations have a different number of scars, all three note the scars are not painful, have no underlying tissue damage, are not unstable, and have no functional limitation of motion. The April 2023 VA examiner noted five scars located on the Veteran's left lower abdomen all measuring 1 cm x .1 cm with a total approximate area of .5 cm2. The October 2023 VA examiner noted seven scars with one scar measuring 2 cm x .2 cm, two scars measuring 1 cm x .1 cm, and four scars measuring 2 cm x .1 cm with a total approximate area of 1.4 cm2. Finally, the December 2023 VA examiner noted six scars with four scars measuring 1.5 cm x .1 cm, one scar measuring 2 cm x .1 cm, and one scar measuring 3 cm x .1 cm with a total approximate area of 1.1 cm2. Accordingly, affording the Veteran the maximum benefit of the doubt that all scars noted are related to her partial left kidney nephrectomy and not her hysterectomy (which is not connected to service) the most area the Veteran's scars cover is 1.4 cm2. Therefore, the Veteran's scars do not meet the rating criteria for a compensable rating with a 144 square inches (929 sq. cm.) or greater. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's status post partial left kidney nephrectomy scars are not of the head, face, or neck, is not deep and non-linear, and is not associated with underlying soft tissue damage. Moreover, the Veteran's status post partial left kidney nephrectomy scars are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, and 7804, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include experiencing body positivity issues related to having these scars, and these reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran does not assert, and medical treatment records do not show, that the Veteran's status post partial left kidney nephrectomy scars are manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating for the Veteran's status post partial left kidney nephrectomy scars. As the evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND Entitlement to service connection for frequent urination. The Veteran claims she has urinary frequency which is separate from being a residual of her neoplasm of the kidney, status post partial left kidney nephrectomy. The Veteran underwent a VA examination in October 2023 and December 2023. The October 2023 VA examiner opined that the Veteran's urinary frequency was due to the Veteran's neoplasm of the kidney, status post partial left kidney nephrectomy, but then in the rationale stated that the Veteran's urinary frequency was due to the Veteran's non-service connected 2021 hysterectomy and noted that prior to the 2021 hysterectomy there was no noted urinary frequency. Meanwhile the December 2023 VA examiner opined that the Veteran did not have a diagnosis of urinary frequency and that there was no pathology to warrant a diagnosis. The Board finds both of these opinions to be inadequate. The October 2023 VA examination is inconsistent with itself by suggesting the Veteran's urinary frequency is connected to the Veteran's neoplasm of the kidney, status post partial left kidney nephrectomy, but then saying its actually due to the Veteran's 2021 hysterectomy. The December 2023 VA examination is inadequate because it impermissibly ignored the Veteran's lay statements without discussing whether they were credible or not. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding that an examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury in service). The failure of the AOJ to secure an adequate VA examination prior to issuing its December 2023 rating decision constitutes a pre-decisional duty-to-assist error requiring a remand for another examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA provides an examination, it must be an adequate one). Accordingly, the matter is REMANDED for the following action: Schedule the Veteran for a VA examination for the urinary frequency. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Is the Veteran's urinary infrequency at least as likely as not a distinct disability apart from her neoplasm of the kidney, status post left partial nephrectomy? (b.) Is the Veteran's urinary frequency at least as likely as not related to service, including exposure to toxins while in the Persian Gulf. (c.) Is the Veteran's urinary frequency at least as likely as not is caused by the Veteran's neoplasm of the kidney, status post left partial nephrectomy? (d.) Is the Veteran's urinary frequency at least as likely as not aggravated, i.e., made worse, by neoplasm of the kidney, status post left partial nephrectomy? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the ? Veteran's reports generally inconsistent with medical knowledge or implausible? L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Gallino 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.